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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @
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« Outragedmoderates.org - Not the Most Impressive Use of P2P | Main | Witness List for INDUCE Act (IICA) Senate Hearing Now Available »

July 20, 2004

Hatch's Hit List #8 - Worth1000 Photoshop Contests

Posted by Ernest Miller

What is Hatch's Hit List? Sen. Orrin Hatch (R-UT) has introduced the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) in the Senate. The bill would make it illegal to "intentionally induce" copyright infringement, but is worded so broadly that it would have all sorts of unintended consequences, one of which is to severely limit, cripple or kill innovation in many different fields. Hatch's Hit List is a daily exploration of some of the technologies and fields that the bill would likely affect. See also, Introducing Hatch's Hit List and the Hatch's Hit List Archives.

Today on Hatch's Hit List: Worth1000 Photoshop Contests
Tip 'o the hat to Jason Schultz

Worth1000 is "a daily image manipulation contest site." Basically, it is a website for competitive photoshopping. Everyday, there are new photoshopping contests such as Unsung Vending Machines 2 and If Dogs Ruled. The contest entries are frequently hilarious and often brilliant work. Additionally, W1K is not only a contest site, but a community where people share their knowledge and love of this new art form. Too bad that the INDUCE Act will make the site lawsuit-bait.

The briefest search through the site's many, many image galleries will quickly turn up dozens of derivative work copyright infringements. Sure, some of the works might have a fair use defense, but as Larry Lessig has pointed out, fair use is the right to hire a lawyer. And, even if you could afford a lawyer, many of the works would still be infringing.

The website does have a copyright disclaimer and 17 USC 512-like notice and takedown procedure, but warnings will carry very little weight under the INDUCE Act else common P2P systems would not be affected by the law (which is the ostensible goal). In this case having some warnings might be worse than having no warnings at all, since the warnings get copyright law wrong (Worth1000 Guidelines):

There are some exceptions where copyrighted images can be used legally, such as for parody purposes and even then, only in such a way that the image will not compete with the present or future commercial interests of the original image or derivative works of the image. If you change an image substantially enough that it will not in any way be confused with, nor financially compete with the original (and it's derivatives) it may fall into the category of fair use.
I'm not sure where to begin with how wrong this is. For example, just because you wouldn't confuse a derivative work with the original doesn't mean it isn't infringement. Clearly, W1K is misinforming its community in order to encourage infringement.

There is also a funny thing about the notice and takedown procedures in this case: even if W1K is not liable for hosting the images under section 512, they could still be found liable for inducing the creation of a derivative work. Whether W1K hosted the images or not, they induced the creation of derivative works.

W1K had to have known that they induce copyright infringement on a daily basis. A "reasonable person" would know that when you have a contest called Pop Culture Monsters 4, you're bound to get entries that are derivative works. It was nice knowing you W1K.

Want to know more about the INDUCE Act?
Please see LawMeme's well-organized index to everything I've written on the topic, including Hatch's Hit List: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.

Comments (2) + TrackBacks (0) | Category: Hatch's Hit List | INDUCE Act


COMMENTS

1. john on July 26, 2004 01:30 AM writes...

nonsense, go chase some ambulances or go back to law school...

Permalink to Comment

2. Yawn on July 26, 2004 10:36 AM writes...

Sounds like sour grapes. Are you perchance a failed Photoshopper?

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