Peter Waldkirch is a second year LL.B. student at the University of Ottawa.

Utter the words “online copyright infringement” and most people probably think of the mass distribution of popular music on peer-to-peer networks or Hollywood movies being downloaded through bittorrent. A recent brouhaha over the unauthorized use of photographs uploaded to Flickr (a photograph storage and distribution website popular amongst both amateurs and professionals) in a Toyota advertising campaign serves as a good reminder that the challenges posed by emerging technologies doesn’t threaten only the rights of large content-owning corporations. As user-generated content (one of the hallmarks of the so-called Web 2.0) increases in importance – both demanded by users and courted by companies – these sorts of disputes will likely become more and more common.

The situation with the Toyota ads is fairly straightforward. Toyota (or, more specifically, Saatchi & Saatchi Los Angeles, their advertising firm) set up a website promoting their 4Runner SUV. The website used various pictures that had been uploaded to Flickr by several photographers, at least some of which were duly marked “All Rights Reserved”.  No permission was sought or obtained for the use of these photographs. Flickr users noticed and began to discuss the issue; some got in contact directly with Saatchi & Saatchi. Ultimately, Toyota posted the following message in the discussion thread:

Toyota apologizes for pulling images from Flickr without photographer permission. Images from a handful of photographers appeared on a Toyota site for five days. We’re working quickly to reach out to the individual photographers involved. Until then, the images have been removed, and corrections have been made to the process of pulling images from Flickr.

The affected Flickr photographers reported differing levels of promptness in their dealings with Toyota and Saatch & Saatchi, but currently the 4Runner website links back only to Flickr photos which note that the photos are now being used with permission.

Although this story seems to have been settled amicably enough, it does raise some questions. For example, although Toyota has apologized, they never explained how this happened in the first place. Presumably, a large and experienced advertising firm like Saatchi & Saatchi (who themselves are no strangers to IP controversy – they lost the Doc Marten account after using unauthorized images of Kurt Cobain, amongst others) should know better than to just grab photographs marked “All Rights Reserved” and use them in advertisements. No explanation has been offered, leaving many Flickr users with a bad taste in their mouths and feeding a perception that, regardless of what copyright law demands, powerful organizations have a feeling of entitlement and privilege that leaves individuals severely disadvantaged. In response to Toyota’s apology, User “idog~” wondered if a car thief could respond with,

We apologize for aquiring [sic] vehicles from Toyota without permission. A handful of vehicles disappeared from Toyota dealers for five days. We’re working quickly to reach out to the individual dealers involved. Until then, the vehicles have been returned, and corrections have been made to the process of aquiring [sic] said vehicles from Toyota.  

If intellectual property is truly property like any other, and infringement does equal theft, idog~’s dissatisfaction with Toyota’s response is understandable. Flickr user “Cindersmom & Roma, in & out” expresses a typical frustration with the perception of unequal positions with the comment that,

Major corporations have NO ethics.. it is always about their bottom line or just $$$$.. If they can use someone else’s work, rather than pay anyone, they feel entitled.. It is agains [sic] the law and most Corporations have deep pockets and NO fear of individuals…. Steamed up now..

Snorri Gunnarsson, one of the affected photographers, noted the hypocrisy on his blog with, “when big corporations and well known ad agencies that of course have their own work copyrighted to the teeth, start behaving like kids on Pirate-bay, then that is just too much.”

These sorts of conflicts will likely only increase as corporations seek to attract customer loyalty through incorporating user generated content in advertising campaigns. Toyota itself recently launched its “Beyond Cars” campaign, which seeks to attract user submissions.

Ironically enough, there are also examples of how even the most zealous advocates for strict copyright laws can run afoul of the law. American Senator Orrin Hatch, for example, infamously called for the creation of technology that could remotely destroy an accused copyright infringer’s computer. It was quickly discovered that his own website was created using unlicensed software. The party of French President Nicolas Sarkozy, advocate of France’s HADOPI “3 strikes” graduated response law, has itself been caught infringing copyrights twice. Even the MPAA, a great advocate of stricter infringement laws, has had problems, most notably when they were slapped with a DMCA takedown request for distributing GPL software in violation of the licence.

At the forefront of these sorts of issues are licensing concerns and ignorance. Flickr’s popularity with professional photographers is largely a result of its relatively hands-off approach to its user’s copyrights. Various user-defined licences to third parties, including several Creative Commons licences, are recognized by its API. Releasing something under a “copyleft” license, however, is no guarantee that it will be respected. Bradley M. Kuhn of the Software Freedom Law Centre, for example, claims to uncover about one violation of the GNU GPL per day. Even more troubling, however, is how poorly these licences are understood by many users. A quick search for “Creative Commons” at Flickr’s help forums, for example, reveals many fundamental misunderstandings about the nature of not only a Creative Commons licence but copyright licensing in general.

Speaking of GPL violations, the Software Freedom Law Centre notes that most violations are the result of ignorance of obligations or sheer accident, and can usually be resolved in a friendly manner. This highlights the importance of copyright education, for both individual users and employees of organizations. Copyright law has had something of a reputation for being both Byzantine and highly specialized. The days of the printing press as the chief source of infringements are long gone, however. As networking technologies blur the distinction between content producers and consumers it seems clear that increased awareness of both rights and obligations is necessary.

Posted in Copyright, IP, Infringement