Picked this one up today while reading Eric Goldman’s blog.
Basically, a French news organization, Agence France Presse, copied images from Daniel Morel, a guy who snapped some pics of the Haiti earthquake and posted them on his Twitpic account. AFS didn’t attribute the images to Morel. Morel then brought suit, claiming, inter alia, that AFP violated 17 USC §1202(b), regarding removal of copyright management information, when AFP failed to include the CMI information that was not embedded in the image itself, but was located alongside the image (similar to what Flickr does).
Eric Goldman adds context:
There has been an ongoing schism in the 1202 jurisprudence about whether or not it’s a 1202 violation to copy a copyrighted work without retaining the [Copyright Management Information] located somewhere other than in the work itself. This case is a fine example of the problem: when people copied Morel’s photos, they didn’t go back to Twitpic to see what additional CMI might have been presented on the pages alongside the images. Some courts, recognizing the potential trap this creates, have read the 1202 statute narrowly, basically saying that metadata not in the file itself can’t trigger a 1202 violation. . . . Other cases, including this one, have rejected these narrow readings of 1202 and indicated that failing to capture and republish metadata outside the file itself could violate 1202. (Emphasis added)
It doesn’t seem practical (or even necessarily feasible) in many cases to include the CMI information directly on the work. Granted, watermarks have been used in photography for as long as I can remember, seemingly because photographers didn’t have a good option to prevent others from copying their work and using it for their own purposes. Thus, the photographer would embed a watermark directly into the image so that it couldn’t be copied. However, in the digital age, it’s pretty easy to copy an image and, if the watermark is along the edge of the image, crop it out.
Photo management websites, such as Flickr, allow users to specify what copyright license they want to apply to a particular image that they own and upload to the site. This information isn’t included directly in the image file, but normally along the image on the same webpage. To read §1202 narrowly, and not hold those parties that want to use an image found on the web accountable to determine whether they have the right to use that image freely, seems counter to the purpose of such a statute. By reading the statute narrowly, it gives violators an escape hatch to freely take a vast multitude of images from the web, while undermining the expressed wishes of the content owners who have uploaded the images stipulating specific copyright license terms.