Is Yahoo/Flickr DMCA Policy Censorship?

By
February 13th, 2007

Mashup of Michael Crook by Thomas Hawk

Reflections about the Michael Crook affair will surely be all over the web soon. People will look back in anger, although the prevailing sense of outrage may be tempered by many notes of caution — it's not all fun, being hassled by a griefer. I probably leaned more towards that sense of outrage in this recent conversation with Thomas Hawk, popular community photographer, prominent blogger and all-around evangelist for the digital revolution.

Jeff Diehl: So I guess the first thing is to offer you a chance to disclose some stuff.

Thomas Hawk: I'm CEO of Zooomr. We would be considered a competitor to Yahoo's Flickr photo sharing site. I've been very active on Flickr both before and after joining Zooomr.

JD: Explain precisely what happened when Crook DMCAed you.

TH: I posted a photo of Michael Crook on Flickr. I've got a reasonably popular Flickr photostream and so I posted an image of him there using a mashup that I made with the image of Crook. After posting these images of Crook I received DMCA take down notices from Crook for the images on Zooomr and thomashawk.com. Flickr also received a DMCA notice and used it to take down my mash up of Crook.



I don't so much have an issue with Yahoo taking down the image (at least temporarily until the legitimacy of the claim could be investigated) but I do have a problem with Yahoo taking down all of the conversation and meta data around the image and permanently deleting it. There was a long conversation on the image by many different people about Crook and this case. Public discourse, opinion, ideas, etc. that was just wiped out by Yahoo without telling me first.

After they took it down they sent me a threatening email. I responded back to Yahoo staff about it and pointed them to a Boing Boing link where Fox News in fact had given Boing Boing, and anyone else, permission to use the images, but that email went unanswered. They never did put my stuff back up and now an important discourse is permanently lost.

JD: Do you feel the discourse is especially "important" because it's about free speech? Or does that just make it ironic?

TH: This is most certainly about free speech in my opinion. It sucks that all anyone has to do to kill a conversation at Flickr is to claim a DMCA violation. Irrespective of the fact that Yahoo should have done a better job actually investigating the claim before deleting the image, there was no reason to delete the words and comments associated with the image.

I'm a strong advocate of free speech. Especially on a community based photo sharing site. Especially one like Flickr where people frequently use their photostreams to express opinions, thoughts and ideas.

JD: It seems that Yahoo has an extreme policy regarding DMCA takedown notices; even beyond what the law stipulates.

TH: I don't know how many photos of Crook Yahoo wiped out but there was no need to wipe out the metadata, comments, descriptions, posts, etc. And there was no need to permanently delete this stuff. Yahoo went way beyond what the DMCA requires and I don't like that anyone can just send in a bogus DMCA notice on my Flickrstream and have hundreds and thousands of lines of text deleted that might be associated with an image.

Yahoo needs to change their policy on this.

JD: Do you know of any other community sties (other than Zooomr!) that have a different, more reasonable approach?

TH: Unfortunately I'm not as familiar with other sites so I'm not sure how they would handle all this. Eventually Yahoo sent me a notice after Crook rescinded his bogus DMCA notice. But when this happened they didn't put my old photo and all of the commentary and dialog that went along with it back up, they merely said I could reupload it if I wanted because he rescinded. He held the power. Not me, not Yahoo. And he largely succeeded at least there because he wiped out tons of negative personal criticism about him and his behavior. This is censorship to me.

JD: I know my host, Laughing Squid, handled it brilliantly, but it's a small company; it's more complicated with a behemoth like Yahoo, isn't it?

TH: Well yeah, Scott Beale handled it really well. But Yahoo's being big and corporate and all that shouldn't be an excuse. I pay them money for Flickr. Lots and lots of people pay them money for Flickr. If they need to hire a few more people to better review DMCA takedown notices I'm not going to lose any sleep over it. They are a billion dollar company and certainly have the resources to do the right thing here. In any case, irrespective of investigating the bogus claim there is simply no — zero — reason to kill the text that accompanies an image. Ideas are important and ought to be protected.

JD: You say in your comments: "My biggest problem is that they destroyed *my* metadata associated with the image." That's a powerful way of putting it.

TH: Well some of it was mine. The post that accompanied the image for instance. And lots of comments that I made in a public discussion about this. The metadata also belongs to others at Flickr as well though. In fact anyone that commented on the photo and expressed their thoughts and opinions had their metadata destroyed.

The biggest distinction between my vs. Yahoo's, though, is that I consider the stuff I post on the site to belong to me. They are profiting from my data no doubt, but all of the images, text, comments, thoughts, ideas expressed on Flickr don't belong to Yahoo, they belong to the users and the users should be treated with more respect than I was when I just had my stuff unceremoniously deleted.

JD: I'm not sure when exactly the take down and safe harbor provisions of the DMCA were drafted, but it seems possible that sites like Flickr, where original images are intertwined thematically with original words, weren't on anyone's radar.

TH: Maybe not, and I certainly understand that Yahoo can find itself in a dilemma and feel that they don't have much choice about it. But they still shouldn't allow just anyone to kill speech attached to an image. I've posted many many images on Flickr that are political. Images where I've run into harassment from security guards while shooting out in SF. Images associated with what I've considered child abuse. Images of a sleazy camera retailer that almost ripped me off, etc. In these cases, like the Michael Crook case, the commentary that accompanies the image is super important and should be protected. There is no way that Yahoo could be held liable for free discussion. They take things too far by deleting all of the commentary with the image.

I'm not concerned with any kind of retribution on this. I'd just like to see Yahoo apologize, admit the mistake, put my old photo and the commentary back up if they can (if they still have backups, hopefully). And I'd like to see them change how they handle DMCA stuff in the future by only taking down the image (not the commentary, metadata, etc.) and doing it temporarily so that someone could dispute it.



JD: Did you have any final thoughts?

TH: No, but just want to say thanks to you for really being a catalyst around this entire issue as it relates to Crook and his behavior. You played an important role in bringing up a very important issue, DMCA abuse. The conversations around this are important ones and have important implications for both free speech and democracy.

Details of a settlement will be announced on this site soon. Also, there will be a party and fundraiser for EFF in San Francisco on March 22nd.

See Also:
"Dear Internet, I'm Sorry"
The EFF's Diehl v. Crook page
The Case Against Crook
Craigslist Sex Troll Gets Sued
Thomas Hawk versus Rent-a-Cops

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One Response to “Is Yahoo/Flickr DMCA Policy Censorship?”

  1. KaosmicTigger Says:

    As a frequent user of Yahoo, I’d just like to say……………………………..censorship……………………………..conspiracy!

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