Copy Left And Right

Niall Kennedy has a post on a copyright violation by Microsoft on his blog; essentially, he took a photograph at a public event, posted it on Flickr under a Creative Commons by-attribution non commercial license, and a Microsoft employee used it in his blog, hotlinking to the Flickr image. Niall felt that the usage violated the terms of the license, and took action.

End of story? Not really. As Niall himself says

I likely kicked off a round of IP discussions on Microsoft mailing lists yesterday with a variety of opinions both ways.

But I digress. The key point which caught my attention was this :

• The photograph was of a Microsoft employee, Dean Hachamovitch
• The backdrop shows the occasion - a demo of Vista, with screenshots in a presentation that relates to Microsoft’s intellectual property
• The event itself was the Gnomedex conference - could be considered a public event, but given that it was of a specialized nature and the presentation itself some kind of promotion / marketing, it becomes a gray area

Now, if this photo were used by any other company or organization, no prior rights accrue. But it could be argued that taking a photo of Microsoft’s employee / product info comprises a trespass on their copyright - or that because of the content, they do have some prior rights in the absence of an explicit disavowal.

I’m not a lawyer or expert, so I could be wrong. But the key factor here is that copyright was meant to reward the creative effort. In today’s context, when the content gets captured more through technology aka digicams than through original activity, and the original content featured being under copyright, there’s definitely a lot of gray. Does ownership of a camera and clicking a button equate to creation of content?

From a method perspective, there’s very little difference between taking a photograph with a digicam and recording a movie or other content with a videocam, or doing a screencapture on a PC - it isn’t the effort of the person recording, but the combination of the original content + the technology available. So why should that confer any new copyright?

Coming back to Web 2.0 - most of these sites feature user-generated content. In some cases, such content is created offline - the site serves as a storage and communication medium. Yet, we often find a variety of licensing agreements which in the fine print, arrogate copyright to the service provider.

This isn’t easy; one way out is, if you don’t like the terms, don’t use it. But that doesn’t necessarily make the terms right.

More important - if technological ease makes it right for the effort of pushing the button create a copyright, why shouldn’t other technological ease aka feedreading tools or hotlinking confer additional copyright? And similar to ownership of the camera, payment for the domain name and the hosting confer ownership?

Pandora’s box was nothing in comparison.