an incredible number of blogs have been terminated in the past few days for copyright violation. they were targeted for posting edits (photos) of celebrities – mostly candids and event photos. people have been issued DMCA (Digital Millennium Copyright Act) takedown notices via email as tumblr is supposed to have a three strike copyright violation policy – although i have heard from some people that they were not given any strikes and were terminated without warning.
Several news and photo agencies have enlisted the services of a third party agency called Okularity which uses advanced image recognition software to identify edits that people have posted on tumblr which use copyrighted material. Tumblr is taking immediate action to terminate these blogs to protect their own asses as they are protected by a tiny little loophole in the DMCA. the DMCA protects web hosts and websites like Facebook, Twitter, etc… as long as they comply with DMCA notices and make reasonable efforts to stop copyright infringement. this protects them from being slammed with the infringement lawsuits themselves.
Again, as long as the edits aren’t a direct copy and something is changed, they’re protected by free use.
But free use has been fucked over in recent years.
this is something that i have been thinking on. there is, in fact, a doctrine in the United States copyright law called “Fair Use” which allows people to use others’ content without permission. It allows the limited use of copyrighted material without requiring permission from the copyright owner. Items considered Fair Use would be commentary, criticism, news reporting, research, photos, teaching or scholarship. The Fair Use Doctrine provides for the legal, non-licensed citation or incorporation of copyrighted material in another person’s work under a four-factor balancing test. These four factors are:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
This is important because if a smaller photo of some photo agency is used or a few words out of an entire document is used this could fall under Fair Use depending on the site and the use. If someone were to take a paragraph of your work, or a site has copied your entire site or pictures, and they run a business profiting from your copyrighted work, then most likely its copyright infringement. It seems like it would be very obvious when you see how work is being used on Tumblr that the content is being used under the Fair Use criteria because it: isn’t being monetized; the potential market of the copyrighted work is not really effected; and there’s something to be said for the nature of the copyrighted work and how the photos themselves are somewhat morally grey (taken without consent). The problem truly is that as soon as Tumblr receives a DMCA takedown notice, they would rather immediately cover their own asses and terminate a blog/give a strike than deal with any nuance.
i’m not defending agencies but i totally get what’s going on. the problem is not on people posting candids, but how they are managing to get these photos. some people have not so legal ways to get these images. and if you don’t understant, these kind of photos cost A LOT of money to be bought on agencies sites. i’m not saying it’s right because they are profiting over ppl’s lives, but that’s how it works. theses photos cost A LOT and people have found ways to have direct access to them. the problem is not tumblr users posting candids, but people that have been providing ways to get these pics without paying the right amount to the photographers/agencies. that way, other people from the paparazzi business, like sites and magazines, have a way to get access to the same photos for a low price. so of course agencies are trying to find a way to stop this and they’re basically shooting everywhere cause its probably something out of control and tumblr users are the ones paying the price now