Getty Images has a bit of a well-deserved reputation as a giant copyright troll, sending all kinds of nasty threat letters to people who use the images that Getty licenses. And even though it's showed some signs of adapting to the modern internet world, it hasn't given up on its standard trolling practices. It's also famously bad at it, often sending absolutely ridiculous threat letters.
But it may have sent one so stupid that it could potentially cost Getty itself a lot of money. That's because it sent a threat letter to famed photographer Carol Highsmith... demanding she pay up for posting her own damn photo. That would be bad enough on its own... but it's actually much, much worse. You see, Highsmith is such a wonderful person that she donated a massive collection of her photographs to the Library of Congress -- over 100,000 of them, for them to be released royalty free for the public to use. She didn't put them fully into the public domain, though, instead saying that anyone could use them so long as they gave credit back to her. It was basically a very early kind of version of what's now known as the Creative Commons Attribution License (which didn't exist at the time she made that agreement with the Library of Congress).
And, so here was Getty Images claiming that it held the copyright on these photos, demanding that Carol Highsmith pay up for using her own photograph, which she had deliberately donated to be used freely.
The Defendants have apparently misappropriated Ms. Highsmith’s generous gift
to the American people. The Defendants are not only unlawfully charging licensing fees to
people and organizations who were already authorized to reproduce and display the donated
photographs for free, but are falsely and fraudulently holding themselves out as the exclusive
copyright owner (or agents thereof), and threatening individuals and companies with copyright
infringement lawsuits that the Defendants could not actually lawfully pursue.
As described further herein below, the conduct of the Defendants runs afoul of
the DMCA’s provisions proscribing the removal, modification and falsification of “copyright
management information,” unlawful conduct that has injured Ms. Highsmith, thereby entitling
Ms. Highsmith to the relief sought herein.
The lawsuit notes that despite informing Getty that it was in the wrong, the company continued to demand money from other people making use of her photographs. She also notes that this is not the first time Getty was found to be violating DMCA 1202, and that justifies a much larger monetary punishment.
Getty has committed at least 18,755 separate violations of 17 U.S.C. § 1202, one
count for each of the 18,755 Highsmith Photos appearing on Getty’s website. Thus, Ms.
Highsmith is entitled to recover, among other things, and if she so elects, aggregate statutory
damages against Getty of not less than forty-six million, eight hundred eighty-seven thousand
five hundred dollars ($46,887,500) and not more than four hundred sixty-eight million, eight
hundred seventy-five thousand dollars ($468,875,000).
The unlawful conduct complained of herein is not Getty’s first violation of the
DMCA, codified at 17 U.S.C. § 1202.
Getty was found by this Court to have violated 17 U.S.C. § 1202 within the last
3 years, and ordered to pay over $1 million in damages.
Because Getty has already had a final judgment entered against it by this Court
under 17 U.S.C. § 1202 in the past three years, this Court may treble the statutory damages in
this case against Getty.
Getty must therefore account for well over one billion dollars ($1B) in statutory
copyright damages in this case.
The $1 billion number is a bit extreme, but it is true that Getty doesn't seem to care at all, and has been shaking down people for ages, sometimes over rights it does not hold. As the lawsuit notes, since Getty doesn't seem interested in changing its practices, perhaps a more stringent award is necessary.
If you're wondering about the previous case mentioned above, it's another one that we covered -- the weird and wacky case involving photos from Daniel Morel that were taken in Haiti, leading to a mess of a lawsuit (where almost everyone was totally confused at the beginning) that ended in Getty having to pay up for distributing a photo with incorrect attribution.
The lawsuit also goes after a smaller Getty competitor, Alamy, that is doing the same thing, and some Getty subsidiaries, LCS and Piscount, who, again, are doing the same thing (in fact, the threat letters Highsmith received were from Piscount and LCS). To make matters even more confusing, even though Alamy is a Getty competitor, it uses a Getty subsidiary, LCS, to send out threat letters demanding cash. The lawsuit explains that Highsmith called up LCS and had to talk with them for half an hour convincing them that she was the photographer, she holds the copyright and the images are all available royalty free for anyone to use (with credit back to Highsmith). LCS then informed her that the case against her "was closed" but... continued to shake down others using her images. That makes things look even worse for Getty in this lawsuit, because she can show at least some level of knowledge that they were making fraudulent copyright claims.
This should certainly be an interesting case to follow...
There appear to be a lot of people up in arms over Flickr's announced plans to sell wall art prints of various Creative Commons-licensed images on the site. The uproar is mostly because people who chose a license like Creative Commons' attribution license, and not a "non-commercial" license are not going to see any money from any images that Flickr (owned by Yahoo) sells. And that leads to angry posts like this one arguing that selling the work is "cheesy, desperate and not at all fine with me."
Except... the license that was chosen says that, yes, this is fine with you. This doesn't necessarily mean that Flickr/Yahoo's decision was smart. The way it's being done appears to be upsetting lots of people, and upsetting the core people who make your service work is -- generally speaking -- not smart. But this leads to a bigger issue, one that is highlighted nicely in a post on all of this by Tom Lee, in which he notes that part of open licensing is giving up control so that others can benefit. And this is a key point that is missed by many, unfortunately:
Open licensing is about giving up control so that other people can benefit. That’s all it will cost you: control. Having control feels nice. But you should ask yourself what it really gets you. And you should think about what others might gain if you were able to let go.
Furthermore, he notes that what Flickr is doing here really will benefit lots of folks:
Flickr’s sale of prints does not deprive photographers of their work or money. Users have the same ability to use their work that they always had. The vast majority would never have taken the steps necessary to profit from their work, so print sales do not deprive them of money. When a user really expects to sell prints, they should avoid Creative Commons licensing, which, as I’ve mentioned, is easily done.
Flickr’s sale of prints provides benefits to other people. People who work for and own Flickr make money. The vendors producing and delivering the prints make money. And people who buy prints get to enjoy works of art.
Parker Higgins posted some further thoughts on Twitter that are worth noting as well. Many of the people who are upset about this are angry that Yahoo didn't ask them about this first. But as Higgins notes, that's just bringing back the idea of permission-based culture, rather than recognizing that a big part of the value of Creative Commons (or any other such open license system or public domain) is getting beyond permission culture and recognizing that in giving up control, there are lots of benefits.
Free culture licenses aren't supposed to flag that you're a cooperative player in permissions culture. They're supposed to do the opposite.
Now, one could make a reasonable cultural argument that Yahoo/Flickr should have approached this situation with more caution -- recognizing how some people would likely respond to this, no matter how reasonable or legal it is. If I were in charge of the program at Yahoo, that likely would have been my approach. But, the troubling end result of this is that it may just lead more people to slap a "non-commercial" license on their Creative Commons works, greatly limiting the kinds of benefits that are out there, without providing any real benefit to themselves. In some ways, this gets to the heart of the problems we've noted with Creative Commons in the past -- especially the fact that many incorrectly assume that all CC-licensed material is only for non-commercial use. It's also why we think there's a strong argument that Creative Commons should either drop or totally rebrand the non-commercial offering, so that this branding confusion is dealt with. The anger in this situation is just a rehash of that branding confusion -- and the end result is that it reinforces this idea of "permissions" culture, rather than highlighting the benefits of sharing culture without first needing permission -- even if for commercial reasons.
Prefixing concepts with the epithet "open" has become something of a fashion over the last decade. Beginning with open source, we've had open content, open access, open data, open science, and open government to name but a few. Indeed, things have got to the point where "openwashing" -- the abuse of the term in order to jump on the openness bandwagon -- is a real problem. But a great post by David Eaves points out that the spectrum of openness actually extends well beyond the variants typically encountered in the West:
While sharing and copying technologies are disrupting some of the ways we understanding "content," when you visit a non-Western country like India, the spectrum of choices become broader. There is less timidity wrestling with questions like: should poor farmers pay inflated prices for patented genetically-engineered seeds? How long should patents be given for life-saving medicines that cost more than many make in a year? Should Indian universities spend millions on academic journals and articles? In the United States or other rich countries we may weigh both sides of these questions -- the rights of the owner vs. the moral rights of the user -- but there's no question people elsewhere, such as in India, weigh them different given the questions of life and death or of poverty and development.
Consequently, conversations about open knowledge outside the supposedly settled lands of the "rich" often stretch beyond permission-based "fair use" and "creative commons" approaches. There is a desire to explore potential moral rights to use "content" in addition to just property rights that may be granted under statutes.
He then goes on to write about the ideas of Sunil Abraham, founder and executive director of the Centre for Internet & Society (CIS) in India. Abraham has created an interesting representation showing the extended gamut of openness, which reaches from proprietary to counterfeiting and false attribution:
Eaves's post examines some of the details of Abraham's map:
Particularly interesting is Sunil's decision to include non-legal "permissions" such as ignoring the property holders rights in his spectrum of openness. He sees this as the position of the Pirate Party, which he suggests advocates that people should have the right to do what they want with intellectual property even if they don't have permission, with the exception, interestingly, of ignoring attribution.
This is something that several Techdirt posts have touched on before. One of the most telling facts about unauthorized sharing online is that people preserve attribution -- there's no attempt to hide who made the song or film. That's probably why survey after survey shows that sharing materials online increases their sales -- something that would be unlikely if attribution were stripped from files. Eaves notes that this aspect ties into a particularly hot topic at the moment -- surveillance:
To Sunil, the big dividing line is less about legal vs. illegal but around this issue of attribution. "This is the most exciting area because this (the non-attribution area) is where you escape surveillance," he declares.
"All the modern day regulation over IP is trying to pin an individual against their actions and then trying to attach responsibility so as to prosecute them," Sunil says. "All that is circumvented when you play with the attribution layer."
This matters a great deal for individuals and organizations trying to create counter power -- particularly against the state or large corporate interests. In this regard Sunil is actually linking the tools (or permissions) along the open spectrum to civil disobedience.
It's a fascinating piece that brings some fresh ideas to an area that has been steadily gaining in importance for some time. I hope that Abraham builds on these thoughts, and publishes some more extended and worked-out explorations of them -- ultimately, perhaps, as a book.
As could be expected, once the secret troll-summoning words were revealed, many people rushed to their Twitter accounts to try their luck. They were not disappointed. Over at Boing Boing, Rob Beschizza tweeted an unattributed "Tongues Made of Glass," and was quicky hit with the expected blast of canned tweets.
On Press must have realized something was up, what with the sudden (and huge) increase in non-attributed poem quoting. For a little while, the On Press accounts fell nearly silent. In a few hours, however, its responses suddenly became a whole lot friendlier.
It would appear that On Press Inc. has realized (thanks to a very public airing of dirty laundry) that its previous tactics weren't earning it any friends, customers or respect. This new approach is bound to be more successful on all counts, if for no other reason than the old way did nothing more than paint both Shaun Shane and On Press Inc. as overbearing thugs, hardly the sort of people anybody wants to comply with, much less support. All in all, I imagine it was a very long and hectic day for whoever's running the On Press Twitter horde. This tweet (my new favorite!) pretty much sums it all up.
This is On Press. We actually have to thank you Mr.Cushing. While at first we dimissed your post as simpleminded reactionism, you have brought quite abit of attention to Shane's work. So much so, that we have sold 3219 (as to this hour)of Shane's book in the last two days( more than we do in a month) and have recieved thousands of emails stating how much people like his work. So, by all means keep going. Your the best advertisment we have. Most people seem to not accept your position that using someone's work without credit is acceptable. With much thanks, On Press Inc.
Now, I'm not going to comment publicly on the veracity of those sales figures* because that's beside the point. I have to believe there has been an increase in sales for two reasons: 1. additional exposure and 2. a more pleasant "On Press experience" on Twitter. I'm also not going to comment on the penultimate sentence... yet.
While there's a new On Press leaf being turned over on Twitter, it appears that it's the same old On Press (only grudgier) away from that platform. I was first clued in to this by Kendra Albert, who tweeted me a link to her blog post dealing with her On Press experience. She tweeted the poem, along with a link to our story, and received this in response. (The following image is Kendra's.)
Here let us speak for ourselves, This is On Press Inc. Tim Cushing (Techdirt) posted Shane's Poem on his Twitter account without credit to Shane. He was told to remove the post. Which is our legal right to demand. He then responded in what can only be characterized as juvenile ranting.He has selectively posted what he wants on his bizarre rambling on his webpage.But we have screenshots of all his conversation. You cannot post Author's work without credit to them. Not only is it illegal but unethical. If you published something and someone put it on the internet without credit to you and you contacted them and they refused to credit you and then post your work on the internet without your credit and then encouraged their friends to post the work without credit to you,w e wonder how you would feel. As we do. Shane should credit for his work. And that is all that was asked of Cushing to do
You post was not for commentary or reporting it was to incite. Which is not Fair Use. We understand that some people have a limited and overly simplistic understanding of Copyright Law, which to be expected of amateurs. But, let us put Mr.Cushings efforts in perspective. Of all the issues we deal with daily, he is quite minor and is hardly the first of his kind that we or other publishers have had to deal with . And we have quite abit of experince with resolving these types of issues. Though they take a little time. Secondly, Mr. Cushing has committed quite a few criminal and civil infractions that we are in the process of bringing to bare against him. But as we stated, legal proceedings take time. We have, and are sure that we will have too in the future, deal with sorts like Mr.Cushings as we have in the past. But, that is the nature of Publishing in this era and this issue will be resolved in our favor. However, we would suggest for you that you become better acquainted with the limitations of Fair Use.
So, it appears that On Press (or people pretending to be On Press) is playing nice on Twitter, but is still just as brutish (and confused) everywhere else. Someone claiming to be On Press also visited Boing Boing's writeup on this story to add the following:
We would really like to see if you'll come out from hiding behind this cowardly shield of words, on some poorly excuted blog that list no way of getting a hold of you and give us some real world contact information. For surely, if you presume you are right then there can be no harm in having us settle this in court. Or perhaps your just a wanna be revolutionary that does nothing more than talk hiding behind some silly childish ranting on a webpage. Or are you really up " to putting your money where your mouth is " as they say. So give us some contact information and stop being so cowardly.
"...he (Cushing) acted like some idiotic kid and wrote this fake review. Notice he has not bought the book... And anybody who would go to these lengths rather than first credit an Artist is seriously deranged... Anyone who support this type of unethical childish behavior is as emotionally disturbed as Cushing is ."
"Cushing never read Shane's book he's just an immature idiot who knows how to nothing more than respond like a child when confronted with his immturity."
"Tim Cushing and the other guy have posted fake reviews when Cushing posted Shane's poem without credit and was asked to credit him instead of being a decent human being decide to write a fake review in immature retaliation. Only a moron does stuff like that"
In addition, on the day of the original post, this email was sent to Techdirt's Facebook account. [Interjections in brackets are my comments.]
Ah, Mr. Cushing we are quite amused by your efforts. Your investigation techniques need some work, but they are interesting to review nonetheless. As, for some of the misinformed opinions you've stated in your post ( quite bizarre in it's length) let us correct you. Shaun Shane is dead and died of cancer in 2010 and is buried in Connecticut. [Link to an obituary, perhaps?] He willed all his work and ownership of his copyright to On Press Inc. [Documentation?]
As for Tim Roth, who attempted to verify that you were employed and Techdirt , he is in New York.
[There don't appear to be any Tim Roths registered to practice law in New York. There's a "Timothy Rothwell" in New Jersey. And as for it being "Tim Roth" who called, the voice on the phone (which sounded quite similar to the voice in Shaun Shane's videos) clearly said "James Roth" and the call itself was made using a Texas phone number (the same number belonging to one of the names that has been going around supporting Shaun Shane online, Anne Murphy). It's possible that there is another Tim Roth out there not listed in the official listings for NY lawyers, but who is a lawyer. It would help to see some proof though. For now, it's a misdemeanor to impersonate an attorney in New York. If any impersonation is being done in Texas (where the calls originated), it's a third-degree felony. There may not be any impersonation going on, but we pass along this info as a courtesy to On Press.]
But most importantly after being contacted to remove your post of Shane's poem ,which you used illegally and not in compliance with any copyright law. ( Your use of it on Twitter does not meet Fair Use protection Guidelines; and despite your protest to the contrary, you cannot use copyrighted work - and it is copyrighted - without permission from the publisher) you showed willful intent to incur further infringement of our property and encouraged other to do (quite illegal Mr.Cushing)
[You'll have to point out where exactly I "encouraged others to do" so. I believe your tactics, once exposed, had more to do with any uptick in uncredited poem tweets than anything I said in my post. And, once again, I'd like to see some proof of your claim that On Press holds this copyright. So far, all I've seen is one phrase in the opening pages of a print-on-demand book composed of someone else's poems.
And as for your claim I showed "willful intent to incur further infringement," please take some time to point out exactly where that occurred.]
Additionally, we have just been in contact with Amazon concerning your fake review of Shane's book and have forwarded them the complete conversation with you ( we take screenshots of all conversations involving copyright infringement.) we had on Tweeter and your Twitter post stating that you had just made a review on Amazon in retaliation for being legally contacted to credit Shane or remove the post. Additionally, Twitter can, and does terminate accounts for copyright infringement.
[Good thing you made screenshots because all of your accounts are suspended. In fact, as of the evening of Feb. 18th, I can't find a single one up and running.]
Copyright Infringement is a crime and you cannot use anyone's copyrighted work without crediting them, period. There are no exceptions. We have to say that you have provided with us quite a lot of material to begin prosecution against you for copyright infringement. Also, Mr. Cushing we suggest you become more informed about how legal proceedings are conducted. it takes roughly a month to three months to begin the initial stages of prosecution. On Press Inc.
[I've got nothing to add to this -- other than that there is a whole body of law that talks about limitations and exceptions in copyright law, so to say that "there are no exceptions" is simply incorrect. Moreover, I suggest a crash course on the difference between criminal copyright law and civil copyright law.]
I'd also like to address that last sentence of the self-congratulatory comment left here at Techdirt by On Press.
"Most people seem to not accept your position that using someone's work without credit is acceptable."
["Most people" apparently being "Bob."] Reading the entire post would show that my position is very clearly the opposite. Just like every other writer for Techdirt, I properly attribute the work (and words) of others. Every article posted has links to the source material. Quotations from the source are clearly set off by the use of blockquotes and italics. As I stated in my post, I don't have any problem with seeking attribution. I just didn't care for the method On Press was using. "Using someone's work without credit" has never been acceptable, professionally or privately.
Now, bearing in mind that On Press is still considering naming me in a lawsuit for "copyright infringement, defamation of character and making false claims," there's not much I can do about the offending tweet and faux review. I can't delete them or alter them in any way. The last thing I need is accusations that I'm trying to alter or cover up evidence. As long as there's a legal threat dangling above my head, the tweet and review will stay where they are, unaltered.
Finally, even with this turnaround on Twitter, On Press still has some issues of its own. For one, it continues to claim it's a division of Knopf, despite the fact that Knopf itself told us directly that it has no division by that name. In fact, Knopf itself offered to "release the hounds."
Speaking of Twitter profiles, it appears the background photo On Press is using is a Shutterstock offering. This doesn't mean On Press hasn't paid the license fee (only $19!), but if it just grabbed it thoughtlessly from somewhere on the internet (without attribution), that would be a real shame.
Then there's the issue with its claim of ownership of Shane's work. On Press claims it owns it, despite it never having been registered at the Copyright Office. This doesn't necessarily rule out ownership, but it does make one wish for a bit more proof than an uploaded video/flipbook. If Shaun Shane is dead (as On Press has repeatedly stated), who or what is controlling his work?
Shane's only "published" book is a print-on-demand title from a company that doesn't seem to exist outside of tweets and comments. Without any more information to go on, this book (and its attendant copyright) seems about as legitimate as a scraperbot's Amazon offering compiled from eHow articles and Wikipedia pages. Some sort of chain of evidence needs to be presented before anyone can start filing copyright infringement lawsuits. If On Press has any information related to this, I greatly encourage it to clue the rest of us in on its existence.
Now, On Press has made some great strides in its day-to-day attribution work and I'd like to see it continue down that positive path. I'd also like to see it drop its "division of Knopf" wording and be a bit more open about its relationship to Shaun Shane (or his estate), but I'm not expecting any miracles. I'd also like to see it drop the legal threats but, understandably, it's quite angry with me right now and I don't expect that to change anytime soon. On the bright side, I did receive this little note in my Twitmail late last week.
As someone's who's witnessed the awesome power of the Popehat Signal, I'd hate to be the entity whose legal threats have prompted the lighting.
All in all, though, I'd say more good than bad has come out of this. At the very least, unsuspecting teen retweeters aren't being smacked around by baseless threats involving IP addresses, police departments and lawsuits filed against their parents. While there is evidence that On Press is a bit more "aggressive" away from the confines of Twitter, for the most part it looks like a more positive effort is being made. Old habits die hard, but hopefully the newer, friendlier face of On Press will become the new "normal." Perhaps this will lead to enough book sales that On Press/Shaun Shane can set up an actual web site and offer more than one title. As I've said before, I have no problem with giving proper attribution. I have a big problem, however, with using threats, insults and good, old-fashioned trolling to get these results.
My apologies ahead of time for the length of this piece, but anything shorter wouldn't do the subject justice. I will, however, provide plenty of pictures and blockquotes. This post deals with a strange copyright troll, which bullies people into properly attributing a quoted poem. The troll runs across multiple social media platforms but does a bulk of its "work" at Twitter, where it can receive instantaneous feedback. Along the way, we'll deal with the poet himself, a company called On Press Inc. and some other connections which seem to indicate the poet himself is behind the trolling, along with a threatened lawsuit against me for copyright infringement, defamation and false claims.
It starts out simply enough. As a contributor to this site, I was doing the sort of thing we do in our downtime -- running a Twitter search for the term "infringement." The search results were dominated by tweets from an account that looked exactly like this one.
Only it wasn't this one. The account I saw had this name: @xsaonpress.
When I returned the next day, I was greeted with the message that the above account had been suspended. Odd. So, I searched again, only this time using the keywords "tongues" and "glass," -- two words in the title of the poem in question -- and found that On Press was still in business.
On Press Inc., supposedly a division of Knopf Publishing (according to its Twitter profiles), was running a search of its own and issuing tweet after threatening tweet to anyone who dared publish a short (really short -- under 140 characters) poem by reclusive poet, Shaun Shane, without attribution. The entire poem reads as follows:
"If only our tongues were made of glass, how much more careful we would be when we speak."
The Organization Invisible Children has plagiarized and thus committed copyright infringement ( which is illegal) on their website and on their Twitter account, a work by Shaun Shane. Exemplifying the criticism against them that they do not research their facts and have sloppy journalist methods. (Here is a link: http://www.invisiblechildren.com/) and to the Twitter post (https://twitter.com/#!/Invisible/status/196433854851055618/photo/1)
After sending out an ignored invitation (via direct message) to discuss these "tactics," I decided to throw out some bait.
Soon, I was receiving the same set of tweets I'd seen filling up my search results the night before. On Press, utilizing one of its many, many Twitter accounts, gave me its usual combination of Shaun Shane info and legal threats. On Press has a very shaky grasp on IP law, but it doesn't let its ignorance stop it from trotting out nearly every term (plagiarism, theft) imaginable in hopes of quick compliance.
The first false claim it makes is that Twitter will shut down an account for a single infringement violation. Not true. Twitter may shut down an account for multiple cases of infringement, but a single report won't result in the removal of an account, as is clearly stated in the Twitter terms of service. (On Press has also made claim that this process will shut down an account in 4 hours. You may laugh at this one.)
Twitter will also terminate a user's account if the user is determined to be a repeat infringer.
If the proper steps are followed (via the DMCA form), the offending Tweet will simply be "withheld," with a notice replacing the original Tweet. Finally, On Press delivers this bizarre phrase:
For an entity so concerned with copyright infringement, it certainly doesn't seem to understand the terminology it's throwing around. "Libel" and "liable" are nowhere close to each other in definition, and you'd think an entity this concerned with infringement would know the difference (or at least be able to spell the one it actually means).
Then there's On Press Inc itself, which has its own issues. As you can see from its profile photo, On Press claims to be a division of Knopf Publishing. However, we contacted Knopf Publishing for comment and they said that there is no division of Knopf called On Press Inc. On Press has apparently decided an appearance of Shane's poem in a Poem-A-Day-Celebration hosted by Tumblr and Knopf allows it to add Knopf's name to its profile... and the large publisher's weight to its fight against unattributed use, despite no official connection to the company.
On Press also utilizes multiple simultaneous Twitter accounts, in violation of the Twitter Rules.
Serial Accounts: You may not create serial accounts for disruptive or abusive purposes, or with overlapping use cases. Mass account creation may result in suspension of all related accounts. Please note that any violation of the Twitter Rules is cause for permanent suspension of all accounts.
In one night, my interactions with On Press Inc. included input from the following accounts: @copyrightdept, @vesoaonpress, @vseawonpress, @wasweonpress, @xaswonpress and @xseionpress. All accounts sported the same On Press logo and spouted the same tweets. One could try to make a claim that these accounts are not "disruptive" or "abusive" (and I'd love to watch them make that claim), but there's little doubt On Press Inc's multiple accounts are "overlapping." (@vseawonpress is the only account not suspended at the time of this writing.)
Now, although I was receiving the same stream of misspellings and misinformation from On Press as the other users posting Shaun Shane's (unattributed) poem, I wasn't seeing any signs of life. I was pretty much convinced it was a bot running multiple accounts. To test that theory, I called out On Press on the false claims directed my way, specifically the assertion that Twitter would delete my account for a single violation. To my surprise, it provoked a very human reaction.
So, there was a human behind the account, one who handily provided a link to the terms of service that directly contradicted what he had just said. (I've shifted pronouns, but an explanation is on the way.)
Once I had his/its attention, I pointed out On Press' suspicious behavior -- namely, the multiple suspended accounts linked to its name.
On Press responded with this blast of angry tweets, stating that Twitter itself generated these accounts for it.
It shouldn't need to be said, but this claim is completely false. Mike contacted Twitter to ask about whether or not, as On Press claims, it creates thousands of automatically generated accounts for companies with which to harass infringers, and (no surprise) Twitter said there is no truth to this claim.
I attempted to gather more information, but my overtures were rejected. At one point, an On Press account mentioned it performed this "service" for "other authors" but refused to name any. It also failed to cough up a usable URL that might indicate On Press Inc exists outside of multiple Twitter accounts.
Shortly thereafter, the accounts went ballistic, showering me with a long list of legal threats.
This was prompted by its discovery of a tongue-in-cheek review of the only book On Press has for sale, one I had posted earlier that night. (You may notice a second review has suddenly appeared -- from the same person who showed up to criticize my review.)
Again, On Press made several dubious claims, including the ridiculous suggestion that Twitter would surrender my IP address to the police on the strength of a fake review posted on an entirely different site. It also seemed to feel that the Feds would be interested simply because I was using a computer.
However, he/it wasn't kidding about one thing: "legal prosecution." The morning following this bizarre conversation with On Press (Feb. 8th), Techdirt received a phone call seeking to confirm that I "worked for Techdirt," with the "lawyer" on the phone saying that he wished to serve me with a lawsuit (at Techdirt's headquarters) for "copyright infringement, defamation of character and making false claims."
To date, nothing has been filed, despite the voicemail implying the lawsuit was already filed. But here's the great thing about legal threats: nothing being served to this point doesn't mean nothing ever will. The possibility still exists and the potential plaintiff is free to file anytime before the statute of limitations expires. This is likely a bluff, but it carries enough weight to make any future direct interaction with On Press ill advised, to say the least. This leaves him/it free to aggressively pursue those posting the poem without attribution, without worrying that I might ruin the fun by pointing out its false claims.
With the threat of a lawsuit still hanging overhead, I'm simply going to present my findings, all backed up with screenshots and/or links, with a minimum of speculative commentary.
The On Press Inc. "Network"
First off, let's address the "him/it" issue. On Press Inc. seems to exist solely as multiple accounts spanning several social media platforms. Running a search will serve up a few hits on existing businesses with the same name, but I have confirmed that these are unrelated to this bizarre attribution trolling.
A Poem Is Nothing
Shane's book is print-on-demand. Amazon doesn't list it this way, but other booksellers do. So, there's no pile of unsold paperbacks sitting in an On Press warehouse. This may explain why there's so little effort made to provide infringers with a "buy" link during the barrage of tweets and comments.
The On Press Twitter horde usually presents two links. One of them leads to this video displaying "proof" that someone (d/b/a On Press, Inc., with no address displayed) holds the copyright to "Tongues Made of Glass." (The other links to the Invisible Children photo.)
Now, a video like this could be made by literally anyone (with hands) and hardly presents a solid case for On Press' claim to Shaun Shane's poem. None of his work has been registered at the US Copyright office, either by himself or by On Press (or by anyone, actually). This limits any legal liability for infringement to actual proven damages, making the threat of a lawsuit slightly more tolerable. Also, the claims made at the end of the video, which appear to be a bastardization of the typical "copyright policies" found on sporting events, saying no copies can be made "without written consent of the publisher," overstates the powers given under copyright law in ignoring the possibility of fair use or other exceptions to copyright law.
Interestingly, the voice on the "copyright" video sounds nearly identical to Shaun Shane himself. Shane has a very distinctive cadence and tone to his voice, as evidenced by this live performance.
[Shane's voice also bears heavy, heavy resemblance to that of James Roth ("representing On Press Incorporated"), the caller who contacted Techdirt about serving me with the lawsuit.]
So, is On Press simply Shaun Shane, reclusive poet and attribution seeker? He'd certainly be the person most interested in enforcing this. His impossibly glowing bio at PoemHunter puts Shane in Schrodinger's Box, theorizing that he's dead ("...had become terminally ill and his re-emergence was to reinforce the ethic of Pure Poetry or Truly Modernist Poetry before his death..."), before theorizing in the opposite direction a few sentences later ("though it is believed, if he is still alive, he lives on the West Coast...") One of the On Press Twitter accounts I dealt with claimed Shane was dead and had willed that his work be used to raise money for various children's charities. (Too bad no one's trying to sell that book...) This claim is echoed at Pinterest, where the same sort of attribution-badgering occurs.
Whether Mr. Miche is real or simply Shaun using another name remains to be proven. (It does share a Shaun Shane-like bit of alliteration.) Miche patrols Pinterest, sending users who re-pin this photo the same sort of messages as the Twitter accounts do, only without the character limit.
Miche also sports the same shaky legal grasp and penchant for baseless threats.
Here Miche chases down a user (who deleted her tweet) and continues harassing her at her Pinterest account, claiming that people like her using an unattributed quote can "cause untold billions of dollars of lost [sic] for companies who support and publisher [sic] Authors [sic... again] works." Miche also seems to make the claim that she's legally responsible for any retweets (a claim echoed in return by the On Press Twitter accounts).
Hopewell has sent out similar messages to Facebook users, again seeking attribution and using identical wording.
There are a few differences that might indicate she was just "pitching in" with the attribution push ("This Poem is our copyrighted property your use of it uncredited to him constitutes thief."), but by and large, it resembles missives issued at other platforms.
A user named "Sean Seans" refers to himself as "Shaun" and tells her he loves and misses her. And that Sean Seans/Shaun is also busy chasing down wrongdoers posting unattributed poems.
Anne Murphy has also made posts on Facebook concerning Shane's poem and seems to be located in Texas (at least judging from the locations of most of her Friends). The wording is almost identical to the Facebook posts by Alexandria Hopewell, suggesting the same author wrote them. She has also uploaded a few videos of Shaun Shane performances to YouTube. (Interestingly, the phone number on the caller ID from the call by "James Roth" to contact Techdirt is registered to Anne Murphy and also to a vegetable farm, the O.P. Murphy Produce Company -- both in Texas. Also worth noting: there does not appear to be a "James Roth" listed on the Texas state bar. If whoever called is not, in fact, a lawyer, they might want to familiarize themselves with Texas law 38.122 which makes it a felony to impersonate a lawyer.)
But that's not all. Shane/On Press also stalks Tumblr with multiple accounts (some of which are filled with work-from-home scam posts), issuing the now-familiar statements demanding attribution. A search for the terms "Shaun Shane" and "On Press" also brings up hits on several other platforms. On Press/Shane is very busy, though (as far as I can see) never seems to direct anyone towards buying the actual book.
He has also ramped up the aggression, perhaps as a result of his "successful" legal threat. The On Press Twitter interactions were never pleasant, but the latest ones have a decidedly malevolent tone that's undercut slightly by the sheer number of false claims they contain. It doesn't help that the poem is most frequently tweeted by teens -- a demographic On Press/Shane seems to enjoy hurling threats towards.
"know that you can be track by your ip address and that your parents will be the one's who are sued since you are a minor..."
"know that the average cost is $4000.00 per instance but that is times the number of follwers you have, or the number people who are exposed to your illegal post..."
"...but if you were bright you wouldn't have been stupid enought to tweet the poem in the first place..."
"WE don't care if you care. Your account will be terminated that is all that matters to us. We are indifferent to your feelings about it. your just some dumb kid."
There are some interesting legal theories mixed up in there that we have not seen before. I particularly like the idea that infringement is multiplied by the number of followers you have. This would appear to be an entirely novel interpretation (by which I mean "wrong") of 17 USC 504, which has always been clear that the amount of statutory damages paid is per work infringed, not by the number of people who saw the work.
So, what's the point? Why should we care? On Press/Shane is just seeking attribution. It's not like he's sending out settlement letters. Well, for starters, this is not how the system is supposed to work. Those concerned about infringement are directed to Twitter's DMCA form, which to date, On Press has used only once. Apparently, this method is much less satisfying than the instant feedback one gets while hounding Twitter users (even going so far as to follow them to other platforms, as Mike Miche [above] did).
I'm not pissed off that On Press circumvents a system many rights holders find inefficient. I'm pissed off that On Press deceives people about its relationship with a major publisher, using that as leverage to harass users with a variety of baseless threats. It doesn't help that the users receiving the most abuse are teenagers who did nothing more than post a quote they liked, who are then threatened with arrest and lawsuits against their parents in return.
I'm pissed off that On Press is fighting a battle it can't win utilizing bullying tactics. It seems to want respect, but keeps forgetting respect is something you earn -- not something you beat into people. People may start to respect the stick, but they'll never respect the entity wielding it.
Furthermore, if I was a rights holder hoping to protect my creations, I'd be pissed off that someone out there is doing serious damage to copyright itself with a scorched earth policy of baseless threats and vindictive bullying. It makes it that much harder to fight infringement when any existing level of respect has been torn down by another's overly aggressive tactics.
Finally, if I'm Shaun Shane, and I'm not behind this? I'm fucking furious. Any potential legacy or possibility of expanding my audience has been absolutely destroyed by someone who has used my name to harangue internet users across multiple platforms, utilizing angry missives filled with misspellings, deception, baseless legal threats and a very dangerous misunderstanding of IP law in general.
And Shaun, if this is actually you? You're only hurting yourself and your reputation by hammering unwitting Twitter users (among others) for this act of omission. There's nothing wrong with seeking proper attribution. But there are so many methods that work better than this. You can't stop unattributed quotes from flying around the internet. You can't even slow it down.
Do you seriously think anyone's going to Google a tweet to make sure it doesn't belong to someone else before retweeting it? Do you really think people are going to Google "Shaun Shane" unless you bring it up first? Pinterest users, right or wrong, aren't going to do a reverse image search before repinning. Sure, it sucks that stuff strays so far from the original creators, but that's the price you pay for unprecedented access to millions of creative works.
But the benefits outweigh the negatives. Unprecedented access works both ways. You can connect with potential fans and customers in ways that simply weren't possible 10 years ago. If you're only going to see the worst aspects, you'll never be anything more than a set of empty words and threats, spat endlessly into a void, covered in vitriol and self-righteousness. You've crafted a poem with viral possibilities but you're only interested in slamming every door shut as soon as it opens. This final perspective doesn't make me angry. It just makes me sad. There's so much potential but you're too angry to see it. You, and only you, can turn this around.
Additional/supportive links and info.
My Storify account, where I will continue to collect interactions between On Press Inc. and Twitter users.
Last year Techdirt wrote about Leah Day, who was trying to introduce a free model to quilting -- apparently a bold thing to do. Sadly, it seems that the ownership mentality is nonetheless spreading in her field, as she reports in this really excellent new blog post entitled "Copyright Terrorism":
Copyright issues seem to be cropping up with increasing frequency in the quilting world and I for one would like to try to stem this flow, or at least open your eyes, to the very real threat looming for our craft.
What is this threat? Where is it coming from?
It is coming from within our own ranks. Quilters with a certain penchant for copyright and legal wrangling are turning our open, creative craft into a mine field of rules, regulations, licensing, attribution, and copyright lockdown that it's enough to make anyone set down their rotary cutter and sell their sewing machine.
She then goes on to describe a recent case that perfectly summarizes the growing insanity beginning to infect the world of quilting:
The basic story goes like this: Emily Cier wrote a book called Scrap Republic for C&T Publishing. Moda, a fabric manufacturer sent her lots of fabric for free to create the quilts in this book.
So far, so good. But things got more complicated when somebody tried to build on that work -- which is precisely how art has always proceeded:
C&T Publishing randomly flipped through the book and picked a photo of one of the quilts, enlarged the image and printed it on the front of an eco tote bag.
Keep in mind, the fabric used in the quilts were obvious. The pieces they were cut into were large, making it very clear which line of fabric each quilt is created from.
The quilt used for the eco tote just happened to have been created using Kate Spain's Fandango fabric. Kate saw the bags and decided they violated her copyright of her fabric line.
Kate Spain then initiated a lawsuit against C&T Publishing and Emily Cier and demanded both the eco totes AND the books be destroyed.
Now things get murky because on her blog, Kate Spain denies starting a lawsuit, but it's obvious on both C&T's and Emily Cier's blog that a real, big, scary lawsuit was initiated. C&T Publishing ended up taking the blame and came to some accord with Kate Spain.
Day then points out just what a mess this is if people try to think in terms of ownership:
Let's work backwards: the tote bag was printed with a PHOTOGRAPH which was taken by a photographer for the book. Whoever that person was, they aren't credited in the book.
The QUILT was designed and created by Emily Cier.
The FABRIC used in the quilt was designed by Kate Spain.
Who really own the copyright?
She contrasts this mentality with the fashion industry, where there is no copyright (despite the continuing attempts to bring it in.) There, creativity is not only blossoming in a way that is hard to match elsewhere, it has created a huge, profitable industry many times larger than all the copyright companies put together, as the well-known TED talk on the subject emphasized.
She points out where the current obsession with ownership is taking her field:
If we lock up this industry, we will lose something powerful, something essential, something that brought me to quilting in the first place: freedom.
Freedom to play with fabric. Freedom to experiment with different shapes and layouts. Freedom to play with new techniques and materials. We can lose the freedom to create.
Because if you have to check with 5 different fabric designers and the quilt pattern designer AND the free motion quilting designer in order to make your quilt, how likely are you to do it? Even the idea of asking, even words like "licensing," are enough to send many people packing. Off to find another hobby the lawyers haven't ruined yet.
Finally, she offers her own vision of how things could be:
If you post something: an idea, a technique, a pretty picture, whatever, man up and give it away for free.
REALLY free. As in copyright free - as in anyone can use whatever you post for ANY reason.
What's the worst that can happen? Someone might teach your technique or idea. More people will learn it and enjoy it than you could ever reach alone. Is that such a terrible thing?
Several times in her commentary, Day raises another key issue: that of attribution. As she points out, artists need their work to be attributed, so that people can give them credit, and maybe contact them to buy or commission more work. It's the absence of attribution, not the absence of copyright, that can be problematic -- and not just for quilters, but also for the photographers that take pictures of their work, and the designers of fabrics that might be used as raw materials.
It's really a wonderfully rich post, which touches on many aspects of copyright and creativity, and I urge you to read it -- along with the forthright comments (already there are 142 of them.) It provides another example, alongside the fashion industry, of a field that is currently flourishing without copyright, but that is under threat from those who have bought into the story that assigning ownership to something as insubstantial as ideas somehow promotes creativity, when in fact all it does is to shut it down through a creeping, paralyzing fear of infringement, as Day so vividly describes.
Many, many people think that attribution is a key part of copyright law, but in the US it's really not a part of the law at all (with a few tiny, nearly meaningless exceptions). Attribution issues may come up in situations of plagiarism, but they have little do with copyright infringement, which is infringement with or without attribution. Elsewhere, there are issues of moral rights, but for the most part, the US does not recognize moral rights in copyright. Of course, many have argued that perhaps attribution is more important than much of what is in copyright law, and at times there have been efforts to focus more on the question of attribution over infringement. A recent study has tried to quantify some issues around this idea and put questions about the value of attribution into context. Eric Goldman points our attention to this recent paper by Christopher Sprigman, Christopher Buccafusco and Zachary Burns which is entitled Valuing Attribution and Publication in Intellectual Property.
The paper's authors seek to get a real sense of what the tradeoffs are for content creators -- and they quickly discover that content creators are willing to accept significantly less money in exchange for attribution and publicity. They also discover -- as their own previous studies have shown -- that content creators tend to significantly overvalue their own works. But the key finding is that attribution has tremendous value to content creators -- both amateurs and professionals alike. You can read the full details of the experiments in the study, but the researchers came up with a clever way to effectively get photographers to value a work with the possibility of getting a large cash reward for it vs. the possibility of having the image published with credit in a major publication. Notably, the impact was much stronger with professional photographers, since to them making people aware of their work had much greater value, even if it meant getting paid much less. It was also interesting to see that amateurs valued publication without attribution less than just getting paid, but for professionals, they were willing to get paid less if the image was published somewhere major even without attribution. Not surprisingly, getting published with attribution was the most desirable, and for that the pros were willing to accept the lowest payment.
I know that some copyright maximalists love to bash those of us who point out that there is significant value for content creators in getting their works out there and accessible in ways that people see/hear/experience them -- and this study presents some empirical evidence to support the idea that it's a pretty strong effect. Towards the end, the study digs a bit into the policy questions and suggests that requiring attribution (a la moral rights) as a mandatory part of copyright law actually could be harmful, in that it would take away a key negotiating point over which prices could change drastically. Coupled with the fact that artists have been shown to overvalue their rights, such an attribution right actually makes it more difficult to come to an agreeable price on content, and limits how much content is likely to be sold. Definitely an interesting read overall.
Whenever I speak about Free Culture at schools, I'm asked "what about plagiarism?" Copying and plagiarism are two quite different things, and you don't need copyright to deal with plagiarism. To make this clearer, I made a one-minute meme song and video about it:
As Mimi demonstrates with the giant Copy Machine, copying a work means copying its attribution too:
just copy the credit along with the work
When people copy songs and movies, they don't change the authors' names. Plagiarism is something else: it's lying. If Copyright has anything to do with plagiarism, it's that it makes it easier to plagiarize (because works and their provenance aren't public and are therefore easier to obscure and lie about) and increases incentive to do so (because copying with attribution is as illegal as copying without, and including attribution makes the infringement more conspicuous). American Copyright law does not protect attribution to begin with; it is concerned only with "ownership," not authorship. Many artists sign their attributions away with the "rights" they sell, which is why it can be difficult to know which artists contributed to corporate works.
I chose Beethoven to illustrate how copyright has nothing to do with preventing plagiarism. All Beethoven's work is in the Public Domain. Legally, you can take Ludwig van Beethoven's songs, Jane Austen's novels, or Eadweard Muybridge's photographs and put any name you want on them. Go ahead! You're at no risk of legal action. Your reputation may suffer, however, and you definitely won't be fooling anyone. If anyone has doubts, they can use that same copy machine - the Internet - to sort out who authored what. Lying is very difficult in a public, transparent system. A good analog to this is public encryption keys: their security comes from their publicity.
The song says "always give credit where credit is due," but in many cases credit is NOT due. For example, how many credits should be at the end of this film? I devoted about two and a half seconds to these credits:
Movie and Song by Nina Paley Vocals by Bliss Blood
But I could have credited far more. In fact, the credits could take longer than the movie. Here are some more credits:
Ukelele: Bliss Blood Guitar: Al Street Recorded by Bliss Blood and Al Street
What about sound effects? Were it not for duration constraints, this would be in the movie:
Every single sound effect in the cartoon was made by someone. Should I credit each one? Crash-wobble by (Name of Foley Artist Here). Cartoon zip-run by (Name of Other Foley Artist Here). And so on: dozens of sound effects were used in the cartoon, and each one had an author. What about the little noises Mimi & Eunice make? Not only could the recording engineer be credited, but the voice actor as well (as far as I know, these were both Greg Sextro).
I included a few seconds of Beethoven's Fifth Symphony at the end, which I didn't credit in the movie. Should I have? Why or why not?
I could credit the characters:
Starring: Mimi Eunice & Special Guest Appearance by Ludwig van Beethoven
I could be more detailed in crediting myself:
Lyrics and Melody by Nina Paley Character design: Nina Paley Animation: Nina Paley Produced by Nina Paley Directed by Nina Paley Edited by Nina Paley Backgrounds by Nina Paley Color design by Nina Paley Layout: Nina Paley Based on the comic strip "Mimi & Eunice" by Nina Paley
The ass drawing also came from Wikimedia Commons, where it's credited to Pearson Scott Foresman. But who actually drew it? I have no idea. I doubt that Pearson Scott Foresman could even legally claim the copyright on it to "donate" to Wikimedia in the first place, but there they are, getting credit for it instead of an artist. That's because copyright is only concerned with "ownership," not authorship.
Then there's the software I used, good old pre-Adobe Macromedia Flash. Should I credit the software? What about the programmers who contributed to the software? I also used a Macintosh computer (I know, I know, when Free Software and Open Hardware come close to doing what my old system does, I'll be the first to embrace it) and a Wacom Cintiq pen monitor. How many people deserve credit for these in my movie?
Mimi and Eunice themselves were "inspired" by many historical cartoons. Early Disney and Fleischer animations, the "rubber hose" style, Peanuts, this recent cartoon, and countless other sources I don't even know the names of - but would be compelled to find out, if credit were in fact due. Is it?
And so on. It is possible to attribute ad absurdum. So where is credit due? It's complicated, the rules are changing, and standards are determined organically by communities, not laws. I had to edit the song for brevity, but I kind of wish I hadn't excised this line:
A citation shows us where we can get more of all the good culture that Free Culture's for
Attribution is a way to help your neighbor. You share not only the work, but information about the work that helps them pursue their own research and maybe find more works to enjoy. How much one is expected to help their neighbor is determined by (often unspoken) community standards. People who don't help their neighbors tend to be disliked. And those who go out of their way to deceive and defraud their neighbors - i.e. plagiarists - are hated and shunned. Plagiarism doesn't affect works - works don't have feelings, and what is done to one copy has no effect on other copies. Plagiarism affects communities, and it is consideration for such that determines where attribution is appropriate.
At least that's the best I can come up with right now. Attribution is actually a very complicated concept; if you have more ideas about it, please share.
This one is just bizarre. Romenesko points us to the news that the director of the University of Utah's Middle East Center, Dr. Bahman Baktiari, who regularly writes op-ed pieces for various newspapers, has been accused of plagiarism. His defense? He claims he had no idea he was supposed to attribute the content he copied. Plagiarism cases turn up here and there, but I think this may be the first time I've seen someone -- especially from an academic setting -- claim that they didn't even realize they were supposed to make it clear they did not write the content. And, it's not even like he picked obscure publications to copy. What brought this all to light was an op-ed he wrote for the Salt Lake City Tribune, which used at least four unattributed sources, including both the NY Times and the Economist. I guess that means if you're a student in one of his classes, you're now off the hook to copy at will without attribution...
We here at Techdirt certainly take something of an extreme position when it comes to reusing our words: we won't even stop you if you don't give us credit. But, mostly, that's because we recognize that taking credit for someone else's work is likely to backfire on you, damaging your reputation, and we believe that in the end, you'll regret it. Still, that doesn't make it enjoyable when we see someone trying to pass off our work as their own, so I can certainly understand the reaction of people who get quite upset when it happens. Still, even if you get upset, that doesn't mean you should immediately fly off the handle and threaten legal action. There are much more measured ways to approach it.
For example, Brian points us to a blog post by the folks at Common Craft, who have noticed that many mainstream media sources are using their video about how Twitter works without any credit whatsoever. The content itself is under a Creative Commons non-commercial, no-derivatives license, which it seems clear most of the media properties in question are breaking. Only one (ABC/Disney) actually seems to have followed through on the licensing terms.
But still, what's impressive is that Common Craft still takes a very low key approach to it, first noting that perhaps the media's use is "fair use," and then saying:
I'm not writing to make a big hairy deal about the use of the video. The truth is, we're not sure what's appropriate or what to expect
And then asks the community what they think and how they should respond... while also naming the offending parties (NPR, CNN, CBS and KOMO News in Seattle). No matter what you think of the situation, or what Common Craft should do, I think it's fantastic to see yet another case of someone taking a much more measured and reasonable approach to such things, rather than immediately going into "threat" or "cease-and-desist" mode. Personally, I think that the approach they've taken makes the most sense: simply make your community and your fans aware of the situation, and then watch as they help police it for you -- alerting news organizations (most of whom probably didn't even realize they should have credited the video) of their mistake.