Licensing of your holiday photos

Everyone seems to be talking about Facebook today, but it is rather amusing that half my friends are alarmed about the site because of the Scrabulous business, and half of them because of the question about licensing of user images, and only a few of them about both. Joe posted a link to a story about a supposed “rights grab” by Facebook of content such as pictures that its users upload. I thought a good deal about this and wrote up a summary of the things I thought and the things I wanted to know in the comments in Joe’s blog, and since it was contrary to the responses most people were giving, I thought I’d publish it again here.

Note that this just my opinion and ideas about the story, and is all “as I understand it” information; I’m not a lawyer, consult a lawyer if you do want to know about the law, may contain tree nuts, etc.

Why I’m interested about this:

1) BACKGROUND: Part of why Facebook is useful is that it lets you add photo albums. It has perhaps out-Flickred Flickr. But that would hardly be useful if it wasn’t integrated with the rest of the site, so it lets you use the photos in groups and as user icons and so on.

2) WHAT IT ISN’T. As the CBC article two away from Joe’s link points out, it doesn’t mean there’s a licence which allows random use of your images by anyone. I think this needs emphasis. The licence might, possibly, mean that Facebook could give or sell rights to use your photos to certain people. It does also mean that anything you’ve already uploaded has already been given away under this licence and deleting it doesn’t stop it in theory (although in practice I imagine it does).

3) WHY IT IS BASICALLY REASONABLE: Presumably Facebook think they need some kind of licence in order to make sure nobody sues them for reproducing an image that they themselves uploaded. (When you upload a video you are given many stern warnings about making sure you have the right to do so.) Presumably, also, they are concerned that if they ever sell or spin off to a different company, reassigning this licence is going to be a trivial matter rather than requiring new permission from every person who has used the site (as KDE had to do for their entire codebase when they relicensed it, iirc). This much of the licence seems reasonable, and the ordinary cover-your-arse clause. I believe MySpace have pretty much the same. What is an interesting question is whether they intended to be able to give or sell away these rights for individual pictures when they wrote the licence, and whether they’re doing so now.

4) WHAT WE DON’T KNOW. We don’t know whether this has ever happened. What we know is that in the case of Stefanie Rengel, the Toronto PD and some newspapers published her Facebook picture, with credit given to Facebook. It is not terribly surprising that Facebook provided Rengel’s photo to the Toronto PD (they have a well-known history of cooperating with law enforcement). But we don’t know whether the Toronto PD had permission to publish it. We don’t know whether Facebook found that they had given themselves rights to assign rights to use the picture, and told the Toronto PD that they could do so to help the murder investigation. We further don’t know whether the CBC and the newspapers had permission from the Toronto PD *or* Facebook to use the photo. If the newspapers did have permission from the Toronto PD, we don’t know whether the Toronto PD had been given permission by Facebook to grant permission to use the photo. (That last sharealike point is one I think might be missed by people who don’t spend time thinking about licences.) It is particularly strange to see CBC reporting on CBC themselves exploiting an apparent loophole in the Facebook licensing, and also strange to see them silent on who exactly gave what permission to whom. We don’t know any of these things from the stories linked, and people are getting very excited on very little information.

5) RIGHTS AND THINGS: This doesn’t appear to affect Rengel’s case, but most countries, including Canada, recognise the Berne Convention concept of “moral rights”:

“Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.”

I believe that Canadian law does not allow these to be sold, but they may be waived. Facebook’s TOS is silent on the matter. And there’s also the separate issue of model release to consider (recall the case of Alison Chang), but I don’t know how that affects photos of the dead.

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Thomas Thurman

Mostly themes, triaging, and patch review.

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