Idebate
This image may be copyrighted. I don't know the origin of the image. If someone knows, please let me know.

UPDATE:

Larry Angell via Email
Hi Joi,
I was the original poster of the iDebate image. I posted it on my blog
back on Wednesday, the 13th. It was an original work done by one of our
MacMinute.com readers (I'm the editor over there) who let me post it.
Thanks for any possible link :-)

http://www.happygolarry.com/2004/10/13/bulge

Cheers,

Larry Angell
Editor-in-Chief, MacMinute
http://www.macminute.com


37 Comments

What's the point of Creative Commons if you're just going to use work anyway?

lago. This is a good reason why we NEED Creative Commons. I'm making an assumption that this image is a political image and the author would probably like to see it spread with attribution. Usually when I post stuff like this, someone tracks down the source and I am able to post a link for attribution. If the author wants me to take it down, they can tell me so and I can do it with minimal damage. I wrote that this image may be copyrighted so that people know that it is not mine and not covered under the Creative Commons license on my site. I am looking forward to interacting with the author.

Obviously, there is a chance that the author is upset or would sue me for this. I have decided it is unlikely, but it is possible.

Until the author releases it to you, it's not your choice to make, right? Nor is it your assessment of the potential damage that matters. The point is that if you're simply going to appropriate it anyway (justifications aside), then CC is meaningless.

A similar situation under CC would be that the author requires attribution, but your assessment is that you don't need to attribute (or you don't know who to credit) so you post without attribution (instead of, you know, not posting). CC runs on the idea that the holder of copyright provides certain permissions as long as people follow the rules that the holder sets for the image/music/whatever. But if you, as a user of that image/music/whatever, aren't going to follow the rules as they stand under current law/rules, then CC doesn't really do anything except change the rules that you're breaking.

This becomes an argument FOR CC only if you start from the premise that you're going to appropriate their content UNLESS they provide CC to protect themselves, and that CC is therefore good because it provides a way to make the whole transaction legitimate from the point of view of the consumer who will just appropriate the content otherwise.

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lago: This is probably a thumbnail or a smaller version of a larger image, it was probably intended as a timely political statement and not something "for sale", I'm engaging in political discourse, my site is non-commercial. I think there is a strong argument for fair use. I am also making a sincere effort to find out who the artist is. I Googled around extensively. The point is, I don't know the intention of the author, so I have to infer it. I assume that considering the timeliness and the satirical nature of the image, author probably wanted it wide distributed. So even without CC, I am posting this image assuming 1) the artist wouldn't mind and 2) that this is fair use.

The problem with fair use is that it is fuzzy. The author could argue a variety of damage arguments. On the other hand, there are very few cases where a web site has been held liable after they have taken down copyrighted material after a take-down notice has been sent to them. I would probably take the image down if the original artist contacted me and felt strongly.

CC is nice because if the artist had used a CC license, I would know their intent without doubt or risk. In this case I'm taking a calculated risk that the artist is person with a senses of humor trying to make a political statement.

I was just chatting with someone who also pointed out that there is a funny catch 22 here. You can't try to find the author without posting the image. You could sort of describe it, but it wouldn't work. If the author was trying to start a political meme having a CC license would make it much more fluid.

I guess what we have here is a fundamental difference in how we respect people's ownership of their work. I interpret in the "first, do no harm" way that says, simply, if you don't know, don't post it. It may very well be harmless, but you don't get to decide.

As a wild hypothetical, the creator could be someone who did this at work, and who spent company time doing it, at a company that doesn't appreciate the humor or the wasted (from the company's perspective) effort. Bringing attention to it could in fact pose a danger to employment or prestige in this situation. On the other hand, it could be some bored Farkster playing around.

The point I'm making is, despite any apparent characteristics of the creation that make it seem like it's providing instructions to you, you don't get to make choices on the creator's behalf, you don't have a right to know who the creator is, and if it doesn't work out how you like it, that doesn't mean you get to post it anyway just because you think it's funny. But I understand that you don't agree with this, and that you think there's no harm. I hope you're right.

lago & ito - this really illustrates the need for a decent, open, ubiquitous means of attaching rights management to digital assets. We have EXIF for adding meta data to images -- is it only JPEG that supports this? And is it malleable enough to support CC-like schemes?

With this in place, the image would contain all you needed to know. We could even establish a convention that images without this information are fair game.

That way, the author (or any subsequent receiver) could email the image, provide a torrent, post it to usenet etc. etc. It's a real weakness that CC type schemes are so specific to the environment the media appears in and are in a form completely divorced from the assets they aim to protect.

A few good points, this is an interesting discussion. Joi, I'm sure you didn't mean this exactly:
"I would probably take the image down if the original artist contacted me" - the "probably" doesn't belong there.
The catch-22 is a very good call. And finally, there is the matter of a default copyright. In the beginnings, you had to register copyright and then renew it after a certain period if you were still marketing the work. Now the law automatically grants us a copyright on any napkin artwork, and that holds for 100 years. Maybe the law isn't really helping...

anson wrote: "adding meta data to images"

It's already in the works: http://creativecommons.org/technology/challenges#challenge_entry_3850

I don't know if he created the image above, but Paul Myers (Mike Myers' brother) published a similar comic in The Tyee last week. His contact information is available from the Tyee site.

http://www.thetyee.ca/Comics/current/TotallyWired.htm

We are actually doing a lot of work in trying to attach CC info into the media itself. I'm going to blog about this in a minute, but here is some progress on mp3s.

Robin : Yes. If the creator told me to take it down, I would. I guess I would ask why and would try to get some proof that the creator was indeed the creator. But I'd probably try to talk him/her into letting me keep it here.

Thanks banana. Sent email to them to try to find the source.

I take exception to Iago's notion that by posting the artwork Joi is 'using' it. If not posted the piece would languish as ephemera, known only to its creator and a restricted circle of primary recipients.

Surely blogs exist to facilitate discoveries of this kind, particularly when they are tagged as Joi has done, with the provisos regarding attribution and takedown.

'Use' is, I reckon, something different from simply pointing out that something exists.

Oops. You beat me to it Robin. ;-)

Sorry to keep rambling here, but a few more notes.

Google images uses copyrighted images. They will accept takedown notices, but they assume correctly, that there is no damage done and they clearly mark that the images may be copyrighted. Unlike traffic law, most business law really is about harm and damage. The law says what Google is doing is OK.

Now taking your hypothetical case above about the information not being published. The courts have ruled that works come upon by "unclean hands" is still susceptible to fair use. The person who leaked it might be liable for some sort of breach. Newspapers frequently print confidential memos they've received as fair use.

I'll be the first to admit that the image above isn't as important in the context of news as a confidential memo in a whistleblowing case, but we're still within the scope of fair use, I believe.

Bahahahaha! Tantek and I were talking about doing the exact same thing last week when I was up in SF. Too funny.

Also on the debate about copyright what about trademark infringement with the use of the apple logo? Is this covered under the parody laws? And who would be the copyright owner? The network who shot the footage that was used? The person who re-arranged the artwork? I think about 15 different bullshit copyright laws are in violation here so this is probably the worng piece of art to get into a who's who to blame jihad.

That's funny Jason. ;-)

But... once more. Copyright law is mushy because of fair use. It's not like speeding where you're either speeding or you're not. No laws have been "broken" since I can argue fair use. I haven't made money on it, none of the parties you list have a very good claim that they were harmed or lost money. Obviously, I could be sued, but you can be sued for just about anything. The other thing is that even if there was minor damage, the cost of a lawsuit probably exceeds any such damage and does not guarantee that they would win. It would probably be smarter for Apple, the network or the artists to ask me to take it down than to sue me if they don't like it.

The image seems to have first appeared on Happy Go Larry, submitted by a reader on October 13th. The picture then made its way to BAGnewsNotes on the 18th. I saw it there and submitted it to BoingBoing two days ago, actually, which is where I later saw this post.

All in all though, "submitted by a reader" of Happy Go Larry still may not answer any authorship questions, but it's getting warmer.

Not to rain on anyones parade but as I've understood "fair use", The legal use of a limited portion of copyrighted material without permission from the copyright owner for the purpose of newswriting, critisism, review etcetera. Not the whole thing. Now, if this is one parody in a book of 100 ipod ad parodies, your using it in "fair use" but if this is the whole thing, you're not. Try "define: fair use" on google to see what I mean.

Great discussion here, very interesting to hear that adding meta data to images is a goal at the creative commons.

OK. Here's an Appeals Court case where images crawled and produced by a search engine were considered fair use because it was significantly transformative and the use did not harm the market value of the original work:

In January 1999, Arriba’s crawler visited web sites that contained Kelly’s photographs. The crawler copied thirty-five of Kelly’s images to the Arriba database. Kelly had never given permission to Arriba to copy his images and objected when he found out that Arriba was using them. Arriba deleted the thumbnails of images that came from Kelly’s own web sites and placed those sites on a list of sites that it would not crawl in the future. Several months later, Arriba received Kelly’s complaint of copyright infringement, which identified other images of his that came from third-party web sites. Arriba subsequently deleted those thumbnails and placed those third-party sites on a list of sites that it would not crawl in the future.

The district court granted summary judgment in favor of Arriba. Kelly’s motion for partial summary judgment asserted that Arriba’s use of the thumbnail images violated his display, reproduction, and distribution rights. Arriba cross-moved for summary judgment. For the purposes of the motion, Arriba conceded that Kelly established a prima facie case of infringement. However, it limited its concession to the violation of the display and reproduction rights as to the thumbnail images. Arriba then argued that its use of the thumbnail images was a fair use.

The district court did not limit its decision to the thumbnail images alone. The court granted summary judgment to Arriba, finding that its use of both the thumbnail images and the fullsize images was fair. In doing so, the court broadened the scope of Kelly’s original motion to include a claim for infringement of the full-size images. The court also broadened the scope of Arriba’s concession to cover the prima facie case for both the thumbnail images and the full-size images. The court determined that two of the fair use factors weighed heavily in Arriba’s favor. Specifically, the court found that the character and purpose of Arriba’s use was significantly transformative and the use did not harm the market for or value of Kelly’s works.

This was 1 minute of Googling. I'm sure I can find more.

And this image is a political image on a fairly political blog with thousands of posts.

Again... sorry to once again ramble but... this is a non-profit site which is sometimes satirical and sometimes educational. And I have yet to hear a convincing argument of how much damage this would cause. Even in your list of definitions of fair use above, I hit most of the major points of fair use. Goggle and Arriba are commercial, but they get away with their thumbnails. We could argue about what a "thumbnail" is. I think on Google it's 150X150 pixels which is a bit smaller than this image.

And remember. We need to keep pushing for fair use or you will lose it.

I quote from the University of Chicago Manual of Style:

The right of fair use is a valuable one to scholarship, and it should not be allowed to decay through the failure of scholars to employ it boldly. Furthermore, excessive caution can be dangerous if the copyright owner proves uncooperative. Far from establishing good faith and protecting the author from suit or unreasonable demands, a permission request may have just the opposite effect. The act of seeking permission establishes that the author feels permission is needed, and the tacit admission may be damaging to the author's cause.

I have a question. I see everybody talking about US copyright. What if the author of the image is from another country? Would the copyright laws of that country be involved, or would it still be US laws since ito.com is hosted in the US?

People are way too uptight about ownership. Joi - cool pic... thanks for being public enemy #1 and posting it hopefully Ashcroft will understand.

Oskar: I depends on where you get sued. I think that if the picture owner were Japanese and they sued me in Japan, it would rather different because we don't have the same notion of "fair use" as they do in the US. There are some international laws for trademark and copyright but International lawsuits require invoking international treaties and groups like WIPO and cost even more money than local lawsuits. Japanese courts don't seem to care where the stuff is hosted as long as the parties are in Japan. But, as in the US, if people send you a take-down notice and you comply, it's usually not a problem. How you can use people's content is much more clearly defined in the law in Japan and many Japanese law experts feel "fair use" is sloppy. (Although I disagree.)

Oskar,

We're 'Merican's, we don't care about other countries OR their copyrights.

You were right Mike.

Why isn't anyone on BoingBoings case for re-posting what Joi re-posted? At least Joi has the decency to add credits now that he knows them (Thanks Mike!). BoingBoing does it all the time too.

Boingboing image-repost:
http://www.boingboing.net/2004/10/19/dubyas_bulge_is_an_i.html

Actually, Cory links to the original which is all that Larry asked for in his email.

Joi: thanks for explaining, I guess you never know what you can expect. I`m not really sure what the copyright laws would say in the Netherlands, but I think complying with a takedown notice would be enough in most cases.

Eric: So you guys wouldn`t mind if we change our copyright laws and start offering hollywood movies and US music for free? ;-)

I've seen some great arguments on both sides here, but one thing I know for fact is that according to the DMCA (Digital Melinium Copyright Act) compliance with a take-down request is enough to avoid any legal reprocussions.

As for "Fair Use" this is borderline and personally I never use anything whole without prior permissions, but as the goal of most bloggers is to get more links-- and thus, readers-- to their site I doubt many would complain.

As for how it would stand up in court, well the monetary gains/loss test is what the courts look at. While posting this image might be considered plagerism (If you were to claim authorship which you didn't) I doubt any court would call it copyright infringement as no money has been gained or lost.

As for "Fair Use" this is borderline and personally I never use anything whole without prior permissions, but as the goal of most bloggers is to get more links-- and thus, readers-- to their site I doubt many would complain.

If we have the same practices in Sweden (I'm unsure about this) that would be great. Then I can publish copyrighted music on my web site and if I get a take-down request people surely have downloaded the stuff and can share it on p2p networks.

Hi,

I'm the original author/creator of "iDebate".

Based on the outlines of a photo by AP Photo/Ron Edmonds (Original Metadata: during the presidential debate in St. Louis, Friday, Oct. 8 / Copyright Status: UNKNOWN), I created the ad-parody, meant to be understood as a personal and satirical statement.

It is absolutely non-commercial. I don't want to earn any money with it, I never had the intention to do that. Again: it is a parody!

It was my idea to strap a white box with white wires on the back of a "certain black shadow", like it was my idea to call the whole thing "iDebate".

Using the Apple-Sign made it more authentic and even more controverse, indeed. May Steve forgive me ;-)

I live in the so-called "Old World", where GWBs so-called "Freedom Fries" STILL ARE "Pommes Frites".

So, these were the facts - let's (i)debate!

;-)

The OCILLA part of the DMCA protects you only from the actions of the users of your site, not yourself. Also, you must have registered with the US Copyright Office and must follow the other details specified in the law.

The Communications Decency Act also provides possible protection but that doesn't protect you from what you write, only from what others write. It's far broader than the DMCA - it protects you from defamation, libel or anything someone else does. No registration or other requirements, except that it must not be your own words.

Personal responsibility for personal actions remains.

As a purely pragmatic matter, most copyright holders will accept a takedown - but that's just because they often want to avoid legal costs as well.

Of course you're right, James. But no one asked me before putting that thing online. I just sent it to a few people for their personal amusement. Astonishing, how it made its way ...

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25 TrackBacks

Listed below are links to blogs that reference this entry: iDebate.

TrackBack URL for this entry: http://joi.ito.com/MT-4.35-en/mt-tb.cgi/2926

iDebate from :: antti vilpponen net ::
October 20, 2004 6:53 PM

Via Joi Ito... Read More

Funny Source: joi-ito... sort of... Read More

this is joi itos view of the debate if or if not dubya bush was wired when he debated with kerry.. (with a really interesting flood of comments concerning creative commons, you must read them!) [via joi.ito]... Read More

iDebate from futuregeek.de
October 20, 2004 9:25 PM

Interessant ist auch die dazu entstandene Diskussion zu Creative Commons bei Joi. [via]... Read More

Interestiung debate in the comments ensue, not about the iPod spoof but about the copyright in cases where you can\'t find the author. Read More

iDebate Okay, so I don't think he was wired, but the sheer believability that he could've been is amusing. Interesting Creative Commons discussion in the comments, too.... Read More

Bush bulge from AnthonyTrumbo.com
October 20, 2004 9:50 PM

Much has been made of the bulge on President Bush's back during the first debate. Someone may have finally discovered... Read More

iDebate from Everything Is In/Flux
October 20, 2004 10:10 PM

I haven't seen this hypothesis before: That would certainly explain "the bulge" controversy. Bush just wants to listen to his tunes! As I said the other day, some people work better with music. Via Joi's blog. Read More

If you remember, I blogged about the bulge that was found in Bush's back , back during the 1st debate. Well, I have come across what he really had. He had a friggin Ipod strapped to his back! :) Crazy... Read More

The bulge on Bush's back is an iPod. (via Boing Boing)... Read More

iDebate from Karl Jonsson's Weblog
October 21, 2004 12:07 AM

Joi Ito has posted a rather funny image. The discussion that follows is very interesting. Like most images you come across on the web, there is no information about who holds the rights to it and if and how it can be reused. Joi Ito chose to publish... Read More

El secreto de Bush from Merodeando por la enredadera
October 21, 2004 2:20 AM
POSTERS FOR DEMOCRATS from Heli's Heaven and Hell Radio
October 21, 2004 6:57 AM

As a follow-up to my posting Bertie Wooster in Miami , Doug made this fine ad . Read More

LOL! That that's what the bulge on dubya's back is! Read More

[ iDebate ] from futureStep | net.tech, academia, society & culture
October 21, 2004 1:42 PM

A very clever image leads to a very interesting digital rights management discussion:... Read More

CLONMEL -- If you like an image you see on the internet and you download it for use in your own space, you could be misappropriating the image. That's the point made by several people discussing Joi Ito's use of Read More

Karl Rove gets hip portable propaganda iDebates on sale Bush debuts stylish, new Apple mp3 player. White House press secretary Ari Fleischer stated on the record that, "Mr. Bush enjoys the style of the device and was moved by Read More

Linking Park from Nerve Endings Firing Away
October 22, 2004 2:15 PM

Wanted a billboard-sized husband… preferably a funny and rich dude [via Adrants] Have you checked out Jon Stewart handing Tucker Carlson his roasted ass on a platter or have you been busy in your cave? See it for yourself. A Read More

Originally from Happy Go Larry. via Joi Ito. Read More

In past blogs I have posted "The Mystery of Bush's Bulge Continues" which followed "Was the President Wired During the First Debate?" Well the mystery was solved by blogger Happy Go Larry. The picture with this post reveals all. Read More

Fuente:Joi Ito's Web... Read More

Joi Ito's Web: iDebate via Joi Ito's web, originally from a http://www.macminute.com reader, posted at http://www.happygolarry.com/2004/10/13/bulge Read More

やっぱ、音楽ねえとやってられねえよな。 Read More

engadget.com uses this image from joi ito where it leads to a discussion of the creative common. The discussion unfortunately refers to "this particular image", and not the original photograph(s) that "ispired" it, or the Apple ads that it riffs... Read More

Via Joi Ito, iDebate. Bush is probably listening to Adam Curry's daily source code via podcast :) ... Read More

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