Flickr vs. Free Speech. Where Is Yahoo's Courage to Do the Right Thing?

One thing I’ve learned over the years is this - screwing over your users while yelling “the lawyers made me do it!” rarely ends well. Particularly when the lawyers are just being lazy, and free speech rights are at stake.

Flickr really stepped in it this time. And they’ve sparked a free speech and copyright fascism debate that is unlikely to cool down any time soon.

Sometime last week they took down a photoshopped image of President Obama that makes him look like the Heath Ledger (Joker) character from The Dark Knight. The image was created and uploaded to Flickr by 20 year old college student Firas Alkhateeb while “bored over winter school break.” It was also later altered yet again by someone else and used to create anti-obama posters that went up in Los Angeles.

Thomas Hawk has a good overview of some of the other details, but the short version is the image was removed by Flickr sometime last week due to “due to copyright-infringement concerns.”

People are angry over the takedown. There are lots of pictures mocking President Bush on a Time Magazine cover on Flickr that haven’t been removed. And of the Heath Ledger Joker character.

The DMCA Excuse

Thursday Yahoo (YHOO) fired back at everyone who complained, saying that they were required to remove the image pursuant to a DMCA takedown notice. Flickr’s director of community Heather Champ says “In this intance, the Yahoo! Copyright Team here in the US received a complete Notice of Infringement as outlined by the DMCA (Digitial Millenium Copyright Act). Under the DMCA, an individual may choose to file a counterclaim”

She added “We very much value freedom of speech and creativity.”

DMCA abuse is a growing problem on the Internet, and luckily the EFF often comes in to defend people who are unfairly being accused of copyright infringement. And I don’t think there is a lawyer in America who would argue that Alkhateeb isn’t perfectly within his rights to create and distribute this image under fair use and parody defenses.

Yahoo/Flickr should have asked its attorneys if the copyright claim had any validity at all before removing the image, particularly since in this case the image is so clearly non-infringing and also is so politically charged. Yes, Yahoo would have had theoretical liability by not complying if the image was later proven to be copyright infringing. But as I said above, any lawyer could tell you that this is clearly a fair use of the original Obama image, Time Magazine’s copyright and copyright around the movie.

In the past Flickr has deleted accounts of users who are critical of President Obama, but as far as I know nothing like this was done to users who were critical of Bush.

It’s clear that the Flickr team wanted to take this image down. Not only was the image removed, but the entire page was taken down with all the comments to the image. There’s nothing in the DMCA that says you have to do that, too.

Flickr lost my trust over this issue. They failed to stand up for a user who chose to display his work on Flickr over competitors.

They should have had the courage to do the right thing. This is exactly the type of speech that our constitution is supposed to protect. This is not a stolen image. It’s a powerful political expression.

Original post

Comments

[Tony Petroski:]

It's not a free-speech issue. As far as I know, Flickr is not yet a government entity. It's a business issue and here is where the question arises: Shouldn't Flickr have some consistent standard for content beyond allowing anything that demeans Republicans to stay up and taking down anything that demeans Democrats and especially Obama?

It's true they have no guts and this is clearly not a copyright issue.

I assume the staff sees themselves as part-time operatives for the Obama machine, hence the move. Another explanation is that their users are 90% left-wing and Flickr is making a reasonable business decision to make their site simpatico with their users.

Aug 21 09:21 AM

[achates:]

If you don't think the DMCA's assumption of validity is good policy, work to get the law changed. They did what the law required. There is a procedure in the law for responding if you think the take-down request is unjustified.

Live with the law or work to get it changed. Don't pick on companies for doing what the law requires.

Aug 21 10:11 AM

[Graham and ...:]

YHOO is pro-Obama, and therefore wouldn't support this kind of a caricature.

It's possible that there were legal issues involved with DMCA. But any media company worth its salt would have exhausted all its legal remedies before withdrawing something. In this case, clearly YHOO did not perform that role.

It probably sees itself as an intermediary, not as a content provider.

Aug 21 12:19 PM

[achates:]

Aside from the DMCA question, I would have thought the trademark-infringement issues were larger and more obvious than copyright. That logo and red border certainly make it arguable that someone could confuse it for an actual Time product. Does DMCA cover trademark issues, too? And, I don'tthink there's any concept of fair use around trademark.

Companies that, like flickr, host user-generated content, usually act immediately on DMCA takedown requests. They're a third party, not the one accused of copyright infringement. Their freedom to not have to review everything posted is rooted in willingness to abide by takedown orders when requested. If the parodist wants to fight the issue, that's fine, but that's between the artist and the copyright holder.

Aug 21 08:01 PM

[milkchaser:]

The old adage is, "Don't pick a fight with someone who buys ink by the barrel." Nowadays, the powerful people are using a different medium, but it is theirs to control. It is important to publicize Flickr's obvious political bias. One can plead with them for fairness. Good luck.

I agree with Graham that Yahoo is pro-Obama. One can tell from the news sources they pick for their headlines and from the headlines themselves. But bias such as this is old as the hills. One comes to expect censorship from supporters of a strong or socialist state.

achates makes a good point that Yahoo's default action is probably to act on every DMCA complaint and mop up later. So does that mean that the censorship is coming from Time magazine, who protects their interests when they coincide with Obama's/Democrats, but sacrifices them when it hurts Bush/Republicans? To believe that, one would have to believe that Time is left-biased. Not hard to believe, actually.

Aug 22 10:08 AM