Facebook/Breastfeeding Part 3: Revenge of the Facebook TOS

I didn’t intend to do another Facebook/Breastfeeding post so soon, but a new wrinkle in the whole controversy just occurred. Facebook recently changed their Terms of Service. Previously, they claimed rights to use your content as they see fit, but you could terminate those rights by having your account deleted.  Now, not only can they use your content if your account is closed or deleted, but they can sublicense your content as well.

How does this impact the Facebook/Breastfeeding controversy?  Well, suppose a mother uploads a photo of herself breastfeeding.  Facebook, regarding this content as sexually explicit, deletes the account.  However, Facebook retains rights to all content uploaded, including the breastfeeding photo.  Facebook can now sell that photo to a stock photo agency who can sell it to someone else to be used in an ad campaign.  This mother might find her nursing photo being used to advertise baby formula.  Imagine the outrage the mother would feel to see herself in the ad with the tag line "It’s just as good as mother’s milk."

What would the mother’s options be?  Pretty limited.  She could try to sue Facebook, but she likely wouldn’t get very far.  You see, that same Terms of Service also states that you’re agreeing to Mandatory Arbitration.  In short, she will have to travel to a state that the company chooses, face an arbitrator chosen by the company, who likely rules in favor of the company over 90% of the time, won’t be able to subpeona any documents from the company, won’t be able to appeal any decisions to a real court, and – even if by some quirk she wins – won’t have any legal teeth to get any money from the company.  In other words, Facebook has all but declared themselves the winner if you decide you want to challenge them legally.

This might solve the "Breastfeeding Photos on Facebook" controversy, but not in the expected way.  I don’t know why anyone (especially breastfeeding mothers) would want to upload photos to Facebook knowing that those photos could be sold by Facebook to some other company for any possible use without any compensation or recourse given to the user.  Perhaps it is time for another social network, one with better Terms of Service and better operating practices, to rise up and displace Facebook.

Public Domain Wisdom From A Children’s Book

I’m very interested in the subject of Copyrights and the Public Domain.  I happen to believe that the length of copyrights have been extended way too far.  When the Constitution was written, copyrights lasted for 14 years.  After that, you needed to apply for a one-time renewal of 14 years.  Over the years, Congress extended copyright terms and made the renewal automatic.  As it stands now, a work copyrighted by a single individual stays under copyright for 70 years after the author’s death.  A work copyrighted by a company stays under copyright for 120 years from the date of publication.

To give an example of how long this is, take this blog post here.  It is under my copyright and will be for 70 years after I die.  I’m 33 years old as I write this.  Let’s assume that I live until 83 (to give nice, round numbers).  This means that this blog post will remain under my copyright until the year 2129.  Of course, I won’t be around to see the copyright run out.  Assuming each of my children (and their children, etc) have their own children at age 30 (again, to keep things nice and round), this blog post will go out of copyright when my great-great-great-grandchild is 5 years old (NHL’s current age).

Why is this a problem?  Well, for one thing, copyright was designed to help encourage innovation.  You get a temporary monopoly on your created work and in exchange the work passes into the Public Domain after a short while.  The temporary monopoly acts as a financial motivator and the Public Domain helps inspire new works.  I’ve had no problem arguing the first part:  How does having my decedents retaining ownership of something 70 years after I pass away motivating me to create new works?  Am I going to rise up out of the ground zombie-style and create new blog posts?  (Latest Post: BRAAAAIIIINNNNSSSS!!!!!)

The second part, however, has eluded my argumentative skills.  I know that a rich Public Domain is important but was never able to fully argue why.  And, more troubling, I’ve been confronted more and more with people who question why we need the Public Domain at all.  Why, they argue, can’t copyrights last forever?  After all, your ownership of your house doesn’t expire and can be passed down to your children.

The immediate argument that came to mind was that, as a work gets older, it gets harder to track down the owner.  There are some video games from the 1980’s whose copyright ownership is unknown.  How could we hope to track down the proper owner of Romeo and Juliet after over 400 years?  Besides this argument, however, I couldn’t come up with a coherent argument for the existence of the Public Domain.

Then, one night, it came to me from the most unlikely of sources.  I was reading NHL his bedtime story, Magic Tree House #30: Haunted Castle on Hallows Eve by Mary Pope Osborne.  We had finished the story itself and were reading the Notes From The Author when I came upon this quote:

Old tales and poetry from around the world are a constant source of inspiration for storytellers. Creating something new from something old allows us to link hands with people of the past. Or, as Morgan le Fay once said to Jack and Annie (in Magic Tree House #16, Hour of the Olympics), "The old stories are always with us. We are never alone."

That was it.  If we allowed the Public Domain to become extinct, we’ll lose touch with that link.  Yes, new stories will be created, but there is something to be said for using old ideas and putting new spins on them.  Disney (one of the big proponent of extending copyright terms) has made many successful films off of stories in the Public Domain.  Snow White and the Seven Dwarfs, Cinderella, Pinocchio, The Hunchback of Notre Dame, Alice in Wonderland, and The Jungle Book were all in the Public Domain when Disney released their movie versions.  Copyrighted works aren’t physical property.  They should be allowed to pass into the public’s ownership after a short period of time so that the public can use those works to create new works.  Thank you, Mary Pope Osborne, for putting it more eloquently than I ever could have.

Toyota Update: Carmaker Backpedals

On Sunday, I reported about Toyota claiming to own all photos containing Toyota automobiles.  I also posted the story to my photography forum (same one that the Wandering Gnome came from).  Someone there (in a roundabout way) got a response from Toyota’s legal department.  Here’s the response:

Response (XXXX) 11/18/2008 04:34 PM
Thank you for contacting Toyota with your comments and concerns regarding the use of vehicle images. The letter asking the DesktopNexus site to remove all images featuring a Toyota, Scion or Lexus vehicle was the result of mis-communication at Toyota, which we regret.

Copyright law protects the creative work product of artists, photographers, and other creators. Toyota respects these rights, including those of photographers who work with Toyota. Toyota purchases the rights to the images it posts on its sites, and welcomes public use of those images where we have the rights to give. However, this permission is limited to editorial or personal use, not commercial use, such as advertising any products or services. That’s because the photographers – not Toyota – retain the rights to any commercial use, and we cannot give permission to use those images for that purpose. In response the concerns raised by DesktopNexus, Toyota is working with photographers to determine what images may be used for non-commercial purposes, and what we can do to provide broader access.

We hope you will understand and appreciate the legal constraints we face.

Toyota also welcomes interested members of the public to use their own images or photography of Toyota’s vehicles, and we confirm that we have no objection to this use.

We appreciate your interest in our products.

Toyota Customer Experience

I am glad that they’ve backed down from the "all your car photos belong to us" stance, but their reply sounds too much like:

We found a couple of legitimately infringing photos on your site but rather than give you specifics we decided to be lazy and just order them all down. We figured you’d just roll over and take it, but then you had to spread the word. Now we’re facing a ton of bad PR so we’re going to limit our claims to just those originally infringing photos.

This is probably overkill now, but I took these photos intending to post them in protest of Toyota’s stance.  I don’t want them going to waste, so here’s my Toyota automobile.  (The dent was from someone in my office’s parking lot using my car as the signal that they backed up too far.)

Toyota Claims Ownership of Fan’s Photos

I’m going to take a break from the Charleston series to present this "breaking news" article:

There’s this website called Desktop Nexus that allows users to post photos for other people to use as their desktop images.  Apparently, Toyota recently decided to order Desktop Nexus to take down "all wallpapers that feature a Toyota, Scion, or Lexus."  Toyota has used a DMCA (Digital Millenium Copyright Act) notice to frame their demand, so they’re clearly claiming copyright over photos that contain those cars.

When pressed for clarification (since some photos could be legitimately infringing and some might not be), the site’s owner was told "all images featuring Toyota vehicles should be removed, even images with copyright belonging to others."  (He was also told that a specific identification of photos Toyota is claiming infringe on their copyrights would involve time that would be billed to Desktop Nexus – something that Toyota is legally obligated to do if they want to file a proper DMCA notice.)

According to Toyota, if I posted a photo of my Toyota automobile on here (or on my personal blog or anywhere else), Toyota could sue me for copyright infringement.  It wouldn’t matter that my car is completely my own (completely paid up).  Since Toyota once put the car together, they claim to own perpetual rights to how that car is represented photographically.

If Toyota gets away with this, where does it end?  Can Coke sue me if a coke can appears in a photo online without their permission?  Does Old Navy sue me because my photo subject happens to be wearing an Old Navy shirt while posing for a photo?

Here’s the article on TorrentFreak.com: http://torrentfreak.com/toyota-claims-ownership-081114/

Look for a photo of my Toyota car to appear on this blog soon as protest.  I call on all Toyota car owners to post photos of their cars to join in the protest.  Non-Toyota car owners can snap a photo of the nearest Toyota car.  Be considerate, though, and don’t show anything "personally identifying" about the vehicle like license plate number.

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