Question
I know this is not a legal site, but this is closely related to photography so I hope this question can stay here. I am the owner and founder of a wildlife photo site, which I'll only plug here because its relevant for the question:
It's a photo sharing site (plus a whole lot more not relevant for now) where members upload their photos. Myself and the server are situated in the Netherlands, Europe. I'm just a guy with a website and have about zero capacity to withstand legal issues.
Yesterday I implemented a new feature that allows anyone (member or not) to embed a photo on sites external to JungleDragon, say a blog or forum. It does what you expect from other photo services: spit out an embed code that one can copy and paste.
I deeply appreciate the rights of photo owners, and therefore had taken the following measures:
- The size of the embedded photos is seriously constrained
- Although this feature allows photos to be displayed on other sites, the photo file itself still comes from JungleDragon. In addition, clicking it brings the user back to the original at JungleDragon.
- Members who do not appreciate their photos being embedded, can disable it globally, yet the default is that it is enabled (opt-out)
- Unrelated to this embed thing, right-clicking photos is disabled on the site
From my perspective, I have struck a reasonable balance between the control photo owners have over their content and the value of promoting content outside the site itself. Yet I have received some feedback that it is probably better to have embedding disabled by default.
It is absolutely safer, but it will also largely kill the embedding feature, as few users ever change their default settings.
Time to raise my main question: am I subject to any legal issues given the situation described above?
Of course I did a little digging myself, and found this interesting thread concerning 500px's embed feature (which cannot be disabled at all, hence it less reasonable than my proposal):
http://www.pixiq.com/article/500px-encouraging-copyright-theft
It seems there is no real consensus on that thread. 500px claims that thumbnailing is "fair use" and that "any photo posted on the web is trivial to reproduce". I would think that if such a popular service can get away with this, my solution which gives more control to photo owners is a safe bet?
The other thought I'm having concerns how embedding relates to other ways of sharing content. For example, like many sites, I have a social sharing widget on the site, allowing anyone to share a photo (preview) on Facebook and Twitter. It's a common practice and it happens without the photo owner's explicit consent, yet I don't hear anyone complaining about that? Another example is RSS, also available on many sites (including JungleDragon) and what about Google Image search. All of these services reproduce (display) a photo outside its original context without asking for permission.
Sorry if this question is a bit messy, but I'm trying to do good for photo owners whilst also trying to do good for the site. What are your thoughts?
Answer
IANAL - this is effectively-amateur-perspective comment:
What you seek to do seems fair and reasonable and no right minded person could take much offence at it. HOWEVER in the US and increasingly elsewhere such things may make you liable if a user used the means that you provided to violate copyright provisions. In the US The ?? Digital Millenium Copyright Act is probably what you need to consider. In NEw Zealand (my country) recent or proposed laws have provided protection to copyright owners with specific obligations on ISP's and site providers to ensure that copyright is no violated and specific assignment of responsibility if it is.
I am certainly not suggesting that this rough outline should be used as a basis for your actions - but it may point you towards areas which need to be considered, even in a European context.
The references below all relate to the US DMCA but seem likely to provide a good feel for how the relevant rights and desires of vendors, users and the people in the middle (ISPs, photo site providers, ...) all go together.
DMCA summary by US Copyright Office {USCO}
Harvard University summary with links They note:
The Digital Millennium Copyright Act ("DMCA") of 1998 endeavors to balance the interests of internet service providers and copyright owners when copyright infringement occurs in the digital environment. The DMCA protects internet service providers from liability for copyright infringement by their users, if the internet service provider meets certain statutory requirements.
To fall within the protection of the DMCA, an internet service provider must, among other things, take certain steps when it receives notice that infringing material resides on its network; adopt and implement a policy that provides for termination in appropriate circumstances of users who are repeat infringers; and accommodate standard technical measures that are used by copyright owners to identify and protect copyrighted works.The DMCA protects only the internet service provider, and not the users of its system who infringe copyright.
Related:
Useful: Unintended consequences of DMCA . They note
- This document collects reported cases where the anti-circumvention provisions of the DMCA have been invoked not against pirates, but against consumers, scientists, and legitimate competitors. It will be updated from time to time as additional cases come to light. Previous versions remain available.
Fair Use:
Useful Fair use and the DMCA
Useful Columbia edu paper on Fair Use & DMCA
Apple DRM legal ruling, 2010 - "Jailbreaks" are Fair Use
Fair use victories on the DMCA
Check more discussion of this question.
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