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I know this is not a legal site, but this is closely related to photography so I hope this question can stay here. I am the owner and founder of a wildlife photo site, which I'll only plug here because its relevant for the question:

http://www.jungledragon.com

It's a photo sharing site (plus a whole lot more not relevant for now) where members upload their photos. Myself and the server are situated in the Netherlands, Europe. I'm just a guy with a website and have about zero capacity to withstand legal issues.

Yesterday I implemented a new feature that allows anyone (member or not) to embed a photo on sites external to JungleDragon, say a blog or forum. It does what you expect from other photo services: spit out an embed code that one can copy and paste.

I deeply appreciate the rights of photo owners, and therefore had taken the following measures:

  • The size of the embedded photos is seriously constrained
  • Although this feature allows photos to be displayed on other sites, the photo file itself still comes from JungleDragon. In addition, clicking it brings the user back to the original at JungleDragon.
  • Members who do not appreciate their photos being embedded, can disable it globally, yet the default is that it is enabled (opt-out)
  • Unrelated to this embed thing, right-clicking photos is disabled on the site

From my perspective, I have struck a reasonable balance between the control photo owners have over their content and the value of promoting content outside the site itself. Yet I have received some feedback that it is probably better to have embedding disabled by default.

It is absolutely safer, but it will also largely kill the embedding feature, as few users ever change their default settings.

Time to raise my main question: am I subject to any legal issues given the situation described above?

Of course I did a little digging myself, and found this interesting thread concerning 500px's embed feature (which cannot be disabled at all, hence it less reasonable than my proposal):

http://www.pixiq.com/article/500px-encouraging-copyright-theft

It seems there is no real consensus on that thread. 500px claims that thumbnailing is "fair use" and that "any photo posted on the web is trivial to reproduce". I would think that if such a popular service can get away with this, my solution which gives more control to photo owners is a safe bet?

The other thought I'm having concerns how embedding relates to other ways of sharing content. For example, like many sites, I have a social sharing widget on the site, allowing anyone to share a photo (preview) on Facebook and Twitter. It's a common practice and it happens without the photo owner's explicit consent, yet I don't hear anyone complaining about that? Another example is RSS, also available on many sites (including JungleDragon) and what about Google Image search. All of these services reproduce (display) a photo outside its original context without asking for permission.

Sorry if this question is a bit messy, but I'm trying to do good for photo owners whilst also trying to do good for the site. What are your thoughts?

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4  
You may need another question: Does offering an embedded feature violates my user's terms of service? :) –  Itai May 12 '12 at 14:13

3 Answers 3

up vote 5 down vote accepted

IANAL - this is effectively-amateur-perspective comment:

What you seek to do seems fair and reasonable and no right minded person could take much offence at it. HOWEVER in the US and increasingly elsewhere such things may make you liable if a user used the means that you provided to violate copyright provisions. In the US The ?? Digital Millenium Copyright Act is probably what you need to consider. In NEw Zealand (my country) recent or proposed laws have provided protection to copyright owners with specific obligations on ISP's and site providers to ensure that copyright is no violated and specific assignment of responsibility if it is.

I am certainly not suggesting that this rough outline should be used as a basis for your actions - but it may point you towards areas which need to be considered, even in a European context.

The references below all relate to the US DMCA but seem likely to provide a good feel for how the relevant rights and desires of vendors, users and the people in the middle (ISPs, photo site providers, ...) all go together.


Wikipedia- DMCA

DMCA summary by US Copyright Office {USCO}

UCLA comments & links

Harvard University summary with links They note:

  • The Digital Millennium Copyright Act ("DMCA") of 1998 endeavors to balance the interests of internet service providers and copyright owners when copyright infringement occurs in the digital environment. The DMCA protects internet service providers from liability for copyright infringement by their users, if the internet service provider meets certain statutory requirements.
    To fall within the protection of the DMCA, an internet service provider must, among other things, take certain steps when it receives notice that infringing material resides on its network; adopt and implement a policy that provides for termination in appropriate circumstances of users who are repeat infringers; and accommodate standard technical measures that are used by copyright owners to identify and protect copyrighted works.

    The DMCA protects only the internet service provider, and not the users of its system who infringe copyright.

Related:

DMCA USCO - related

Educause on DMCA

Useful: Unintended consequences of DMCA . They note

  • This document collects reported cases where the anti-circumvention provisions of the DMCA have been invoked not against pirates, but against consumers, scientists, and legitimate competitors. It will be updated from time to time as additional cases come to light. Previous versions remain available.

Example action

Fair Use:

Useful Fair use and the DMCA

Useful Columbia edu paper on Fair Use & DMCA

Apple DRM legal ruling, 2010 - "Jailbreaks" are Fair Use

Fair use victories on the DMCA

Stanford

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Thanks so much for the comprehensive answer. I guess that's the problem with legal issues: 99% won't mind but 1% is still too risky. –  Ferdy May 13 '12 at 18:12

Contact all current users (via e-mail or a message on the site, or even both) and tell them about this new feature and how to disable it.

Also, you may want to add paragraph to the terms of use page saying they give you the right to offer an embed feature.

If you have users who are pro wildlife photographers (who may think this will financially impact them) you may want to make sure they got the message, maybe even call them on the phone if you have their number (because this is a group who may be motivated to sue - "just a guy with a camera" has the same feelings about legal action as "just a guy with a website")

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First off Russell provides some excellent links that are worth looking at. Nir also offers great advice.

Here are a couple things I will attempt to answer in your question.

You ask about Google Image Search, first off Google has money (lots of it) and highly paid lawyers. They can fight peons (you and me) till they are out of money (the peons) and still be ahead. There are a few other considerations. The Google Image Search is a service that can "enhance" your site. Meaning your site will receive more traffic and possibly more revenue. (That is the argument at least) And Google allows you to block your wesbsite/page from their results (using a robots.txt). There are a few cases about Google indexing pages (I cannot find them at this time to cite) and Google won because of the fact that any sites can use a robots.txt to block access to Google.

I believe the best bet for a website like yours is this:

When a user signs up to your site and/or submits a photo you have below the submit button "By submitting this photo you agree that your photo can be embedded. To disable this feature please click here." Or something similar and better worded for your site. I would also include this information in your Terms of Use.

And Please remember IANAL and TINLA.

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