A media company demanded a license fee for an Open Graph image I used
alistairshepherd.uk138 points by cheeaun 2 days ago
138 points by cheeaun 2 days ago
My initial reaction to this is that the licensor is a scammer and the author just got fleeced. I don’t know much about the law in the UK, but this tactic is almost identical to the one media licensing companies in the US used to go after old ladies whose grandkids had torrented movies on their internet connections. At least in the US there are many jurisdictions now where those types of cases are just immediately thrown out.
The main difference I see here is the author got bit by an automated tool. It really should be more or less considered a clerical error. I don’t see how paying $1000 is easier or cheaper than just showing up to court if asked and arguing your use was both easy to occur by mistake and didn’t represent anywhere near that value. This strategy has several advantages, among them being not having to pay until the court has ruled, which is a huge deterrent to shops like this. Just being willing to go to court automatically lowers the price you’ll end up paying. But if you don’t show that willingness you’re paying full price, even with the fakery about the 10% discount.
This is the new source of income and a lot of media orgs are getting paid - take ANI in India.
Theyve been hitting YouTubers like Mohak Mangal, Nitish Rajput, Dhruv Rathee with copyright strikes for using just a few seconds of news clips which you would think is fair use.
Then they privately message creators demanding $60000 to remove the strikes or else the channel gets deleted after the third strike.
It s not about protecting content anymore it's copyright extortion. Fair use doesn't matter. System like Youtube makes it easy to abuse and nearly impossible to fight.
It s turning into a business model: pay otherwise your channels with millions of subs get deleted
[1] https://the420.in/dhruv-rathee-mohak-mangal-nitish-rajput-an...
'Which you would think is fair use' - I must admit I wouldn't think that. When I consider Indian content creators making use of clips from Indian media organisations I can't really imagine why Indian copyright law fair dealing provisions, which are far narrower than the US provisions, wouldn't apply. Sure, you get to argue the strike on Youtube using their DMCA based system, but that has no legal bearing on your liability under Indian law.
I really like this aspect of US copyright law. I think the recent Anthropic judgement is a great example of how flexible US law is. I wish more jurisdictions would adopt it.
> Indian copyright law fair dealing provisions, which are far narrower than the US provisions
Are they really? I've been believing the opposite. What fair use does US allow that India doesn't?
Very different in character. The US fair use four factor test (https://fairuse.stanford.edu/overview/fair-use/four-factors/) is really flexible. You don't need to fall into an enumerated exception to infringement to argue that your use is transformative, won't substitute in the marketplace, etc.
Look at the famous Authors Guild, Inc. v. Google, Inc. case. Google scanned every work they could put their hands on and showed excerpts to searching users. Copying and distribution on an incredible scale! Yet, they get to argue that it won't substitute in the marketplace (the snippets are too small to prevent people buying a book), it's a transformative use (this is about searching books not reading books), and the actual disclosed text is small (even if the copying in the backend is large scale).
On the other hand, fair dealing is purpose specific. Those enumerated purposes vary across jurisdictions and India's seems broadish (I live in a different fair dealing jurisdiction). Reading s52 your purposes are:
- private or personal use, including research
- criticism or review, whether of that work or of any other work
- reporting of current events and current affairs, including the reporting of a lecture delivered in public.
Within those confines, you then get to argue purpose (e.g. how transformative), amount used, market effect, nature of the copyrighted work, etc. But if your use doesn't fall into the allowed purposes, you're out of luck to begin with.
I'm not familiar enough with Indian common law to know if the media clips those youtubers you mentioned should fall within the reporting purpose. I'm sure the answer would be complex. But all of this is to say, we often treat the world like it has one copyright law (one of the better ones) when that's not the case! Something appreciated by TFA.
If what you say were true, Indian media conglomerates like the Times Group would be clamoring to sue the hell out of Google for every excerpt shown, yet I haven't heard of a single such case. What ANI did with Indian Youtubers was exploiting the Youtube platform's broken copyright reporting mechanism, not actual litigation.
https://bytescare.com/blog/fair-use-copyright-india-vs-us
The big one being transformative use is fair-use in the US but not India.
> It s not about protecting content anymore it's copyright extortion.
It's always been about copyright extortion.
“This undermines the entire point of the open graph protocol (at least for images). If you have to manually review every image that you include then what's the point in it being a machine protocol?”
Bingo.
Ianal but it feels like if you provide an image via an open graph link, you’re implicitly licensing that image to consumers of the Open Graph protocol to be displayed alongside a link/link metadata.
If the media company didn’t have the rights to relicense that image for consumption via Open Graph and/or the original licensor didn’t want their images appearing via Open Graph, that media company shouldn’t be using Open Graph.
That is such a frustrating situation. I hope the courts would have ruled in your favor but I understand why you chose not to test it.
Wonder if it was like that law firm that Ars Technica wrote about[0], that seeded porn videos, then went after people who downloaded them.
Things did not end well, for that lot.
Prenda Law. They ended up disbarred and in jail eventually. But it took a Federal Judge calling bullshit in open court and making personal referrals to the IRS, the DOJ, and the various State Bar Associations.
The problem with paying ransoms is that even if it actually is the most cost effective solution in any one case, it just creates the incentive for more rapacious behavior.
I think I'd be willing to pay $800 of my time to disincentivize that behavior.
It’s a shakedown scam. IANAL and all that. Gaming it tells me it’s easier to remove the offending focus and ignore them until they send another nastygram. Never directly reply. Dave’s not here, man. Anybody doing this bullshit over an open graph image is looking for a mark. Generally, that’s why there are three strikes policies, etc. Why engage until they initiate? You speak through lawyers and they really have to have a real case or they’re wasting money because this is purely not malicious or profit seeking.
> But ultimately, the easiest and cheapest option for me was still to pay. The chance that it was taken further and the potential cost in terms of money, time, energy from me was too high, higher than the license fee — even if I didn't feel it was justified. So I paid the fee and moved on.
Although it's an interesting and relevant writeup/intellectual property conundrum, I'd feel like the move would have at most been to pull the archive offline and delete or mark the email as spam, assuming the unlikely case that it's not actually automated extortion. There's a few likely angles I thought about hypothetically having taken, but ultimately I firmly don't believe my lack of having read an email or my actual mail constitutes having taken any action at all. If I was interested enough in the problem, I'd just let them decide to track me down some other way afterward. Things are only as enforceable as they are.
That said, I've had collections calls ending up in my voicemail for years, and they are sure as hell not getting paid and haven't tried to take me to court afaik.
Edit: Incidentally, I quite like the dynamic background graphic. A neat art style and reminds me of recent macos backgrounds.
I am still not clear on what Open Graph is or how the image was used here. Some visual aids would have helped tremendously. I assume it is how a specific thumbnail is included alongside an embedded tweet or article snippet?
From what I can gather, it sounds like his copyright exposure came up when he exported his Twitter archive, including the image in question, and hosted (and, crucially, published) it on his own server. Am I thinking about this the right way?
Open graph essentially provides thumbnails and title data for a news article or publication as links, so the news article returned a header image that displays in the tweet "preview"
In this case the Tweet would have been
> TWEET > linked article with open graph image
When exported the author then returned that same open graph info on their personal site, thus rendering a copyrighted image without a license.
Notably, Twitter also re-hosts opengraph thumbnail images via their image CDN (as would just about any other site or app that processes opengraph embeds)
To elaborate with some context: large sites do this to avoid hammering a small site if posts containing the link go viral.
Like imagine the thumbnail were fetched every time a link appeared in someone's Facebook/Twitter feed. That could be tens of millions of hits easy.
It's also a privacy leak - the target page would get to know about every thumbnail view (a la tracking pixel). Although it's likely they only care about keeping that data so they can sell it for themselves, rather than actual privacy.
This feels a lot like reading a technical description of someone choosing to pay an african prince. This is just extortion.
Title is a bit misleading. They did use the image on twitter, but the company asked for a license fee for re-publishing it on their personal website in the form of a twitter archive.
True. Open graph images imply the expectation of it being used by third parties, and as others have said - they chose a little guy to bully but would never do this to X.
Sucks that companies do this but seems like it's inline with the law
basically they're not going to get anything from Twitter with their army of lawyers but once you hosted it on your own website you became personally liable to hold a license for any images your site displayed.
Was the image hotlinked? Or was it copied and rehosted instead? I think that's an important consideration in image copyright cases like this.
Do sites that display Open Graph images generally hotlink them or copy and rehost them?
Just a caution: Many "Free" images are likely actually scraped. I've learned to be careful. I usually use images from only a couple of places (including paid sources), because I really don't trust many "royalty-free" image sources. I have also taken to providing source links in the image captions.
One of the good things (maybe) about AI-generated images, is that you could generate an image that only exists for your article. The rub is that the generator may be giving you an image that is close enough to a copyrighted one, that you could still be sued.
I think that fonts could have the same problem.
Displaying a thumbnail is considered fair use. You got fleeced.
"Fair use" is a concept specific to US copyright law. The author is in the UK, where "fair dealing", which is more limited, applies instead. https://www.legislation.gov.uk/ukpga/1988/48/section/30
Is it actually? There is no explicit carve-outs in fair use laws for the use-case of thunbnails that I'm aware of, so where is the case law on this?
Kelly v. Arriba Soft Corp. - https://en.wikipedia.org/wiki/Kelly_v._Arriba_Soft_Corp.
Fair Use - Internet Publication - https://en.wikipedia.org/wiki/Fair_use#Internet_publication
> "... the Ninth Circuit Court of Appeals ... found the purpose of creating the thumbnail images as previews to be sufficiently transformative"
Any number of large companies are doing it without being sued, with no better justification. They company is just scammy and going after people too small and scared to resist.
It kind of irritated me that he immediately capitulated in a case that was obviously frivolous. Then posted it; has he no shame?
THIS https://www.hackerfactor.com/blog/index.php?/archives/625-De... is how you are supposed to proceed.
OpenGraph allows to get a preview of the content. Allowing access to that preview is implicit and it looks fair to access the image from the media site.
However, republishing that preview elsewhere is still publishing and the author of the post seems to have missed that. Instead he should just publish the link to the media site and let the client that browse his archive access (download) the OpenGraph preview by itself.
Twitter/X does that republishing, but having the license for that republishing is their problem.
I'm curious to know if that preview was part of the Twitter archive. Because it doesn't qualify as "your" content.
A technical solution would be to implement the OpenGraph preview on the client side (JS), instead of having the preview in the archive and hosted/served by it.
I am unsure if this really would work legally, let alone stopping a licensor from demanding money from you in the first place. Does is really matter where the image is served from? If its displayed on your website, does it really matter if its client side JS or static HTML that renders the img tag? I think neither does it matter if you load the image from your own server or from a remote (the original OpenGraph source).
I create most of my OpenGraph images using AI. As far as I can tell, there is no copyright on those images. They are in the public domain (I think?)
How can you communicate that to anyone who displays your OpenGraph images? I always assumed that an OpenGraph image was free to be used as a link to the page, but it turns out that this is a risky assumption.
I may be wrong, but I believe the distinction is between if I were to link to your post with one of your generated images which would get served as og:image and if I were to re-host your image to have it stand in as an "open-graph image" on my site linking to your post then what are the repercussions for me.
This is incidentally also why anonymity is a good thing, but unfortunately you're too late to take advantage of that.
The newspaper distributed the image. They said, "Here, use this image on the link to our story". They effectively sub-licensed it. If the 'owner' had a problem with that, they needed to take it up with the newspaper.
As such, the OP was under the impression the image was free to use in that context. Only once they were informed that was not the case did they become libel. They could have then licensed the photo for the 20 pounds and been done with it. Or just deleted the link off of their website (and also been done with it.)
Even in English law there's 'intent'. The OP had no intent to offend and shouldn't have paid; by feeding the troll they've unfortunately done the world a disservice, although I do empathize with their decision-making.
I don't think the troll would have gone to court, a negative precedent would have been bad for their 'business'.
> The OP had no intent to offend and shouldn't have paid
That can't be how it works. The OP had a responsibility to check the that images that the OP published were adequately licensed. The rights holder makes a claim against the publisher (the OP), and the publisher can make a claim against their supplier (the newspaper.) The judge would then divide the amount of responsibility between the two in some proportion.
> The OP had a responsibility to check
Only within reason. The archive was published in bulk. I don't think there's any expectation every single post in an archive is checked prior to publication.
But more than that, even had the author explicitly checked the thumbnail had been provided by the original publisher via Open Graph. Effectively the original publisher publicly provided this image and suggested that people use it in this manner. There was no realistic way for the author to become aware that the copyright owner did not consent to this use until receiving the notice.
> Only within reason. The archive was published in bulk. I don't think there's any expectation every single post in an archive is checked prior to publication.
Why? Just because it’s onerous doesn’t mean you don’t have a duty to do it.
If the guy had copy and pasted the whole news article and republished it himself, I doubt many people would try to argue that he hadn’t infringed the copyright of the newspaper. So that thought experiment covers the idea that something can be published legally without automatically granting a licence to reproduce the content.
The question here hinges on whether using opengraph tags on an article implicitly sublicenses the image for reproduction. There’s a solid argument that it does, but the author chose not to test that so we don’t know.
If the answer is yes, then it’s the newspaper who are liable for the infringement by sublicensing the image in a way that’s not compatible with their original licence (I assume! At this stage, we don’t know if the newspaper DID actually have the right to relicense the image for reproduction or not).
If the answer is no, then the author has well-meaningly but incorrectly used the image that the newspaper published. Normally this would probably not be heavily punished by the courts, but the author opted to instead pay the fee, which seems a reasonable approach to take given his uncertainty about the legal grounds by which the image was licensed for use (again, I assume. I doubt it, but it is theoretically possible that X/Twitter were in some kind of relationship with the newspaper that made their usage lawful).
Either way, I imagine neither party I think wanted this to be tested in court. The author clearly didn’t, and the fact that (we are not aware of) the company did not go after X/Twitter despite likely bigger payouts for multiple infringements suggests they also did not, as X/Twitter were more likely to litigate the case.
If the legal system isn’t given an opportunity to weigh in, it can’t do so.
> Just because it’s onerous doesn’t mean you don’t have a duty to do it.
That depends heavily on context. Anyway you're refuting a claim that I never made.
A thought experiment. You are publishing an archive containing billions of items and expect that 0.01% will infringe copyright or be libelous or what have you. Can you legally publish that archive without manually checking every single item?
What if you believe that exactly 1 of a total 1 billion posts will be infringing? Are you required to hunt down the single needle in the haystack prior to publication?
I am quite confident that in the vast majority of jurisdictions the answer in both of those cases is that regardless of what the written law says you will not be found liable in practice so long as you take reasonable precautions prior to publication and respond promptly upon learning of any specific infringing items.
> Normally this would probably not be heavily punished by the courts
Or at all? Does IP law not require intent as a necessary precondition of breaking it?
> If the legal system isn’t given an opportunity to weigh in, it can’t do so.
I never claimed it did, only that the outcome appears obvious to me. This looks like a typical troll case.
> That depends heavily on context. Anyway you're refuting a claim that I never made.
You asserted that you don’t think “there is any expectation every single post […] is checked”. I think my answer was completely responsive to that point.
> [You] expect that 0.01% will infringe copyright
This means you either knowingly or negligently publish material you do not have reason to be non-infringing. The 99.99% of non-infringing posts in the article are a red herring, only that 0.01% matters for this discussion.
The test is pretty simple: did you believe the material was not infringing, or did you have reason to believe it was not infringing. In this case, you expect (your word) some content to be infringing. You might get some leeway from the courts, but you would still likely be found liable for unlawful infringement.
> Or at all? Does IP law not require intent as a necessary precondition of breaking it?
The courts may decide to go easy on you, but intent is not required in civil cases (unless it’s a criminal case). See the law itself: 17 U.S. Code § 501(a), and case law regarding intentionality: Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191 (1931) (https://supreme.justia.com/cases/federal/us/283/191/#:~:text...).
> This looks like a typical troll case.
Disagreeing with you doesn’t make me a troll.
I didn't call you a troll, rather I suggested that the complainant in this case is acting like an IP troll.
> intent is not required in civil cases
Fair enough.
> You might get some leeway from the courts, but you would still likely be found liable for unlawful infringement.
I guess we'll have to agree to disagree. Unless you can cite precedent? To be clear, I'm not disputing the law as written but rather as practiced.
> I didn't call you a troll, rather I suggested that the complainant in this case is acting like an IP troll
Ah sorry, I misunderstood.
This example perhaps? https://en.m.wikipedia.org/wiki/Sheldon_v._Metro-Goldwyn_Pic....
https://law.justia.com/cases/federal/appellate-courts/F2/81/...
But they used material from a play published 2 years earlier?
> the plaintiffs discredit this denial because of the negotiations between the parties for the purchase of rights in the play, and because the similarities between the two are too specific and detailed to have resulted from chance.
For a movie an analogous scenario to publishing an archive with infringing material might be unknowingly capturing a copyrighted piece of art in the background of one of your shots and then being sued for it. Except in that case you're profiting from the movie (at least presumably). To make it analogous to publishing archives it would have to be something that isn't profitable, perhaps uploading an amateur short to youtube.
Actually this provides a perfect example. If you shoot enough documentary footage in the city you are almost guaranteed to inadvertently catch something that's copyrighted at some point. Unfortunately the scenario breaks down because unlike the internet you can't easily retroactively edit all distributed copies of your video. Unless perhaps it's only available via streaming services? But then we're back to profiting again.