Watermarks: Possible commons advice to break the law

[lilburne]

Removal of Copyright Management Information (CMI) information is something that occurs outside of any copyright issues, and attracts a penalty of between $2,500 - $25,000 in compensation per infringement, plus costs. Commons advises uploaders to remove watermarks which have been regarded in US copyright cases to be CMI.

I'd be surprised if the CC-BY licenses allows that as cropping or cloning out a watermark does not a derivative make. Photographers add watermarks to images in order that the work does not become orphaned the first time that someone fails to add the attribution. Myself I always embed the information in the metadata though that may change as a number of upload sites strip the data. Google was especially criticised for doing that the other year. Personally, even if I'd released stuff as CC-BY, I'd added a watermark to preserve attribution I'd be might pissed if some Commons dick cloned it out.

[EricBarbour]

Very good point. Unless you've got ironclad written releases from the original author, this is absolutely illegal. Does Commons have ironclad releases for ANYTHING they host?

Read this for more effect--it shows how to hide unremovable watermarks, and says over and over that it violates copyright....

[lilburne]

Even better the images don't have to be previously registered:
http://www.plagiarismtoday.com/2007/07/ ... red-works/

[Moonage Daydream]

Do you mean like Dschwen and Niabot did here, or are you talking about something different?

[lilburne]

I was thinking about this:

http://commons.wikimedia.org/wiki/File: ... rs_-_3.jpg

but not surprising that Niabot is doing it too.

[Moonage Daydream]

I was thinking about this:

http://commons.wikimedia.org/wiki/File: ... rs_-_3.jpg

but not surprising that Niabot is doing it too.

There was a 50/50 chance...

[mike]

If anything, the watermarks ought to be a massive red flag. Does nobody read copyright laws before they make such preposterous policy? Maybe they'll wait until Jimbo's forced into a few more fundraisers to pay for lawyers before they change this.

[HRIP7]

If anything, the watermarks ought to be a massive red flag. Does nobody read copyright laws before they make such preposterous policy? Maybe they'll wait until Jimbo's forced into a few more fundraisers to pay for lawyers before they change this.

The Foundation is not responsible for policies; the "community" is. And the Foundation lawyers are only there to represent and defend the Foundation against the possibility that they might be held liable for the actions of the community.

More specifically, they are not there to represent or advise the "community" on legal matters.

[mike]

The Foundation is not responsible for policies; the "community" is. And the Foundation lawyers are only there to represent and defend the Foundation against the possibility that they might be held liable for the actions of the community.

More specifically, they are not there to represent or advise the "community" on legal matters.

I'm sorry, I'm really not good at this, but thanks for being patient with the new guy, but wouldn't the foundation need to step in in the event something that's well... illegal happens? I mean somebody has to and they're the one's who takes the fall, no?

[HRIP7]

The Foundation is not responsible for policies; the "community" is. And the Foundation lawyers are only there to represent and defend the Foundation against the possibility that they might be held liable for the actions of the community.

More specifically, they are not there to represent or advise the "community" on legal matters.

I'm sorry, I'm really not good at this, but thanks for being patient with the new guy, but wouldn't the foundation need to step in in the event something that's well... illegal happens? I mean somebody has to and they're the one's who takes the fall, no?

No, they don't take the fall, because they are not a publisher. This is based on the Section 230 safe harbor provisions:

https://www.eff.org/issues/bloggers/legal/liability/230

The only one who takes the fall, if anyone does, is the individual editor.

[mike]

No, they don't take the fall, because they are not a publisher. This is based on the Section 230 safe harbor provisions:

https://www.eff.org/issues/bloggers/legal/liability/230

The only one who takes the fall, if anyone does, is the individual editor.

Oh wow that's even better. So it's a "not my problem" thing. Has this not been brought up yet on commons? If not isn't it within the scope of this site to bring it up?

[lilburne]

No, they don't take the fall, because they are not a publisher. This is based on the Section 230 safe harbor provisions:

https://www.eff.org/issues/bloggers/legal/liability/230

The only one who takes the fall, if anyone does, is the individual editor.

Oh wow that's even better. So it's a "not my problem" thing. Has this not been brought up yet on commons? If not isn't it within the scope of this site to bring it up?

Well the UK editors and administrators have a major problem, because depending on what has gone on, their comments and decisions on talk pages and deletion reviews etc, could make them liable to conspiracy, and/or aiding and abetting charges.

[mike]

Well the UK editors and administrators have a major problem, because depending on what has gone on, their comments and decisions on talk pages and deletion reviews etc, could make them liable to conspiracy, and/or aiding and abetting charges.

Well could maybe Americans take care of the parts that need taking care of? I really don't understand the fine points but let's say checkuser would be an illegal operation in the U.K. (I know it's not, bear with me). Would it not make sense then to let the Americans (or any other English-speaker) take the load? I know that won't help what they themselves say, but they could always leave deletions up to other parties if they need to. I'm not saying necessarily Wikipedia should revoke privileges, but couldn't there be a way for an admin to sidestep the situation?

[lilburne]

That seems to be a question of playing the jurisdiction shuffle game to avoid responsibility. Many would think that to be unethical and morally bankrupt. Besides if they know enough to suspect that something is illegal, such that decisions are being made by non-nationals, for example on images on suspected underage porn, then I do believe there are issues in most jurisdictions.

[mike]

That seems to be a question of playing the jurisdiction shuffle game to avoid responsibility. Many would think that to be unethical and morally bankrupt. Besides if they know enough to suspect that something is illegal, such that decisions are being made by non-nationals, for example on images on suspected underage porn, then I do believe there are issues in most jurisdictions.

Call me stupid then, what's keeping some Admin hungry for approval from any group from jumping up and resolving the issue to get noticed? I mean it seems to me like a pretty cut and dry issue: Do -not- remove watermarks without an investigation. Would that be highly detrimental, or at the very least, more detrimental than Commons coming under fire for blatantly hosting and promoting copyright infringing material?

[rd232]

what's keeping some Admin hungry for approval from any group from jumping up and resolving the issue to get noticed?

Yeah, flagging problems - especially ones raised offwiki - is a great way to get approval. Well, I've done it anyway; the potential legal problems are too important to ignore. Hopefully there's an explanation that at least in some cases removal is OK (eg there was a deletion discussion last year (link that focussed on removing watermarks from Creative Commons-licensed images; maybe that was correct for such cases, I don't know). Otherwise, it's rather a large problem.

[rd232]

It seems that the terms of the free licenses used on Commons make removal of watermarks OK, subject to keeping attribution by other means (guidance on Commons is to add removed info to EXIF image data). The (US) law does refer to Removal or Alteration of Copyright Management Information without the authority of the copyright owner (and presumably any similar laws elsewhere would also permit it given the authority of the copyright owner). Free licensing effectively gives that authority, so it makes sense for removal/alteration to be OK, as long as the license conditions are adhered to. Removal does make it easier for the license to be violated in future, but it's not a violation in itself.

link

[lilburne]

Attribution is not the same as a copyright notification. If it were the legal code for the license would not say:

If You Distribute, or Publicly Perform the Work or any Adaptations or Collections, You must, unless a request has been made pursuant to Section 4(a), keep intact all copyright notices for the Work and provide, reasonable to the medium or means You are utilizing: (i) the name of the Original Author (or pseudonym, if applicable) etc
...
and (iv) , consistent with Section 3(b), in the case of an Adaptation, a credit identifying the use of the Work in the Adaptation (e.g., "French translation of the Work by Original Author," or "Screenplay based on original Work by Original Author"). The credit required by this Section 4 (b)

what the freetards on Commons are supposing is that a watermark cropped image is an Adaptation. It is not, it is simply the same image minus the CMI.

I'll tell you this for free, those that complain loudest on flickr about having their images used on some other website shout loudest if their watermark has been removed.

[rd232]

what the [insult removed] on Commons are supposing is that a watermark cropped image is an Adaptation. It is not, it is simply the same image minus the CMI.

Quoting Creative Commons definition of Adaptation (link):

"Adaptation" means a work based upon the Work, or upon the Work and other pre-existing works, such as a translation, adaptation, derivative work, arrangement of music or other alterations of a literary or artistic work, or phonogram or performance and includes cinematographic adaptations or any other form in which the Work may be recast, transformed, or adapted including in any form recognizably derived from the original, except that a work that constitutes a Collection will not be considered an Adaptation for the purpose of this License. For the avoidance of doubt, where the Work is a musical work, performance or phonogram, the synchronization of the Work in timed-relation with a moving image ("synching") will be considered an Adaptation for the purpose of this License.

I fail to see how removing a watermark is not an adaptation. If it isn't, this certainly needs explaining, not just asserting.

[lilburne]

*sigh* an adaptation creates a new work, where another copyright comes into being. See the list of examples above a musical arrangement has an extra copyright in the arrangement, a translation has an extra copyright in the translation. The alterations have to be non trivial. Cropping a watermark does not pass the threshold of creativity. If you allow that it does then say a minor edit, such as shifting of the tonal range or hue of a 19th century painting, or cropping a centimetre off around the sides of an old master, would bring it back into copyright.

[SB_Johnny]

*sigh* an adaptation creates a new work, where another copyright comes into being. See the list of examples above a musical arrangement has an extra copyright in the arrangement, a translation has an extra copyright in the translation. The alterations have to be non trivial. Cropping a watermark does not pass the threshold of creativity. If you allow that it does then say a minor edit, such as shifting of the tonal range or hue of a 19th century painting, or cropping a centimetre off around the sides of an old master, would bring it back into copyright.

I'm having a hard time following what you're saying here... could you rephrase?

(I'm very much interested).

[HRIP7]

There was a prior discussion initiated by Dcoetzee here, which explains how Commons arrived at the present status quo:

http://commons.wikimedia.org/wiki/Commo ... _Watermark

[lilburne]

There was a prior discussion initiated by Dcoetzee here, which explains how Commons arrived at the present status quo:

http://commons.wikimedia.org/wiki/Commo ... _Watermark

Yeah they seam to be saying we don't like watermarks, and as we don't like them we are going to remove them. There is no actual legal advice no one has been off to Creative Commons to ask, they have simple declared that their opinion trumps the license and law.

Re SB_Johnny (not sure if you are being ironic there, but for the slow ones).

Some people tag their images by putting "©2012 name" somewhere on the image. This is called watermarking, and is a form of Copyright Management Information, as it tells any one that looks that the image is copyright (not PD) and who the creator is.

In the US you are not allowed to remove CMI from a work. For digital files some times the information is embedded into the file, so mp3 files can have who the created the work etc in the file. The same is true with images, but it is easily stripped out and some sites do it automatically when the file is uploaded, so many photographers watermark the images, especially if they are releasing them under a free license as they are using the CC license as adverts for themselves as a photographer. This doesn't work so well if the embedded data gets stripped out.

Creative Commons has a ND license which means that you cannot modify the image. But obviously you can in minor ways like sizing it to fit on a page, or printing it where the colours won't come out exactly the same. The license that Commons use allows for modifications, it does so by giving a license to create an "Adaptation". Adaptations involve such things as screenplays, translations into a different language, make a derivative image. Simply cropping or cloning out a watermark is not an Adaptation, just like resizing, it doesn't alter the original work in any creative way.

Obviously if you have made an "Adaptation" then it might not be possible to retain the watermark, perhaps the image is being used as the foreground or background of some photomontage, or in a recent case PBS wanted to use an image of mine where they wanted to animate parts of it to make it pop out in 3D, then a watermark would be silly to retain, and the reuser will need to find other ways to provide the copyright information.

However, that is not the case with Commons fiddling. The image has had the CMI removed regardless as to whether it is necessary for the "Adaptation" or indeed regardless as to whether any "Adaptation" is being done. The CMI is simply removed, which for images effectively makes the orphaned works (2,500 - 25,000 per fiddling).

[mike]

*sigh* an adaptation creates a new work, where another copyright comes into being. See the list of examples above a musical arrangement has an extra copyright in the arrangement, a translation has an extra copyright in the translation. The alterations have to be non trivial. Cropping a watermark does not pass the threshold of creativity. If you allow that it does then say a minor edit, such as shifting of the tonal range or hue of a 19th century painting, or cropping a centimetre off around the sides of an old master, would bring it back into copyright.

I'm having a hard time following what you're saying here... could you rephrase?

(I'm very much interested).

Let's put it this way: I removed the second half of Eric Clapton's "Layla," that means I can sell it now, right?

[rd232]

*sigh* an adaptation creates a new work, where another copyright comes into being.

But the CC definition of "Adaptation" includes derivative work, which doesn't need to create a new copyright, if the derivative isn't original enough.

[lilburne]

*sigh* an adaptation creates a new work, where another copyright comes into being.

But the CC definition of "Adaptation" includes derivative work, which doesn't need to create a new copyright, if the derivative isn't original enough.

If the derivative isn't original enough it is NOT a derivative it is a copy.
http://en.wikipedia.org/wiki/Derivative_work

What you are creating there are copies minus the CMI.

[Mason]

A fellow on WP got de-facto banned for insisting that the images he created and uploaded retain their watermarks.

Here's the RFC and here's a related but mostly tl;dr AN/I thread.

There was some socking and gaming and other stuff but the gist of it was that WP wanted his images but not his watermarks.

They dinged him for "ownership" behavior (among other things) but as he quite rightly pointed out, he did create and does thus own, in a legal sense as well as a common-sense sense, the images in question.

[Mason]

Adding to the above: watermarking is a big no-no on WP: there's even a policy (WP:WATERMARK, natch) and a template that explicitly tells folks to erase the watermark from any images they come across.

[SB_Johnny]

There was a prior discussion initiated by Dcoetzee here, which explains how Commons arrived at the present status quo:

http://commons.wikimedia.org/wiki/Commo ... _Watermark

Yeah they seam to be saying we don't like watermarks, and as we don't like them we are going to remove them. There is no actual legal advice no one has been off to Creative Commons to ask, they have simple declared that their opinion trumps the license and law.

Re SB_Johnny (not sure if you are being ironic there, but for the slow ones).

Some people tag their images by putting "©2012 name" somewhere on the image. This is called watermarking, and is a form of Copyright Management Information, as it tells any one that looks that the image is copyright (not PD) and who the creator is.

In the US you are not allowed to remove CMI from a work. For digital files some times the information is embedded into the file, so mp3 files can have who the created the work etc in the file. The same is true with images, but it is easily stripped out and some sites do it automatically when the file is uploaded, so many photographers watermark the images, especially if they are releasing them under a free license as they are using the CC license as adverts for themselves as a photographer. This doesn't work so well if the embedded data gets stripped out.

Creative Commons has a ND license which means that you cannot modify the image. But obviously you can in minor ways like sizing it to fit on a page, or printing it where the colours won't come out exactly the same. The license that Commons use allows for modifications, it does so by giving a license to create an "Adaptation". Adaptations involve such things as screenplays, translations into a different language, make a derivative image. Simply cropping or cloning out a watermark is not an Adaptation, just like resizing, it doesn't alter the original work in any creative way.

Obviously if you have made an "Adaptation" then it might not be possible to retain the watermark, perhaps the image is being used as the foreground or background of some photomontage, or in a recent case PBS wanted to use an image of mine where they wanted to animate parts of it to make it pop out in 3D, then a watermark would be silly to retain, and the reuser will need to find other ways to provide the copyright information.

However, that is not the case with Commons fiddling. The image has had the CMI removed regardless as to whether it is necessary for the "Adaptation" or indeed regardless as to whether any "Adaptation" is being done. The CMI is simply removed, which for images effectively makes the orphaned works (2,500 - 25,000 per fiddling).

I wasn't being ironic, your prose was a bit dense for me (dense as in compact, not dense as in blockheadish).

What I was trying to clarify is whether the watermark is more or less serving as the attribution in a CC-BY-SA image, which seems to make intuitive sense but IANAL, etc.

[lilburne]

What I was trying to clarify is whether the watermark is more or less serving as the attribution in a CC-BY-SA image, which seems to make intuitive sense but IANAL, etc.

Attribution may be the watermark, and reusers doing the right thing might also have a photo credit page somewhere where they relist all the photogs, regardless of watermark. So someone might watermark there images with "©2012 Lilburne" but ask to be credited as "Lilburne - LilsSite.net". The point of CMI is that it informs people that the image is under copyright, so no one can claim an innocent infringer defence, in the case of copyright abuse. For example say you have released an image as CC-BY-SA and some big advertising company snag the image incorporate it into another work and either don't credit you, or don't make the resulting work CC-BY-SA. Then you'd want them screwed, you wouldn't want them to be arguing that they found it marked as PD or something.

For those that care about the issue, the watermark is important as it associates the image with the creator and may give some indication as to where the creator may be found.

I note the Commons attitude is "We won't have any watermarked images then!" Well so what? There are other places than Commons to get CC licensed images from. That they put as many obstacles in the way as possible is one reason why in so many areas they have nothing but crap.

[lilburne]

Another photographer goes ND-NC after Commons removes watermarks.

http://commons.wikimedia.org/wiki/File: ... _reims.jpg

Mind you there is no actual guarantee that the images was licensed as reported, the uploader has a history of misrepresentation.

[Saffron Blaze]

https://meta.wikimedia.org/wiki/User_ta ... watermarks

Please stand by....

[thekohser]

https://meta.wikimedia.org/wiki/User_ta ... watermarks

Please stand by....

We are studying this issue closely, and will offer comments as soon as possible. --JVargas (WMF) (talk) 21:05, 3 December 2013

It's only been over three months -- please have some (more) patience!

[Saffron Blaze]

Legal staff recommend anyone removing watermarks consult a copyright lawyer first.

https://meta.wikimedia.org/wiki/Wikileg ... ons_images

[thekohser]

Wow, that took the WMF Legal team more time to push out than the time it takes to conceive, gestate, and deliver a baby.

[Konveyor Belt]

Legal staff recommend anyone removing watermarks consult a copyright lawyer first.

https://meta.wikimedia.org/wiki/Wikileg ... ons_images

This requires consulting a lawyer and wasting my time and money just to volunteer on a website. How absolutely ludicrous.

[Mason]

Hmm. here we have:

Opinion from the Wikimedia Foundation legal staff indicates the removal of watermarks may place the remover at legal risk given the provisions of the U.S. Digital Millennium Copyright Act

...followed by suggestions that if you see an unacceptable watermark, to tag it with {{Watermark}}, which says:

This image (or all images in this article or category) should be adapted by removing the watermark.

...with no hint at all to the viewer/editor that they could be legally liable for doing so.

[Vigilant]

Hmm. here we have:

Opinion from the Wikimedia Foundation legal staff indicates the removal of watermarks may place the remover at legal risk given the provisions of the U.S. Digital Millennium Copyright Act

...followed by suggestions that if you see an unacceptable watermark, to tag it with {{Watermark}}, which says:

This image (or all images in this article or category) should be adapted by removing the watermark.

...with no hint at all to the viewer/editor that they could be legally liable for doing so.

Once again, the WMF doing their level best to fuck the editor community right in the ass.

[Saffron Blaze]

Well, there is discussion on the talk page to amend the template to address this info. Problem is, as with everything on Wikimedia, the discussion will get bogged down by disinterest or special interests.

[lilburne]

Well, there is discussion on the talk page to amend the template to address this info. Problem is, as with everything on Wikimedia, the discussion will get bogged down by disinterest or special interests.

I have 1000s of images on flickr (NC specifically so WP can go fuck themselves), I don't use visible watermarks but there is strong pressure to do so, as embedded contact data is easily stripped by the website that it gets upload it to. Often I see images sourced from Commons attributed to Wikipedia that is a breach of the CC license. We know that the attribution is lost when an image is reused outside of WP stripping watermarks makes it even more likely that attribution will be lost.

[Ming]

The Foundation is not responsible for policies; the "community" is. And the Foundation lawyers are only there to represent and defend the Foundation against the possibility that they might be held liable for the actions of the community.

More specifically, they are not there to represent or advise the "community" on legal matters.

I'm sorry, I'm really not good at this, but thanks for being patient with the new guy, but wouldn't the foundation need to step in in the event something that's well... illegal happens? I mean somebody has to and they're the one's who takes the fall, no?

No, they don't take the fall, because they are not a publisher. This is based on the Section 230 safe harbor provisions:

https://www.eff.org/issues/bloggers/legal/liability/230

The only one who takes the fall, if anyone does, is the individual editor.

Ming doesn't think that a lawyer would have much trouble pushing the theory that WMF is the realization of a group of voluntary workers working on a particular publication, and not just a web host.

[EricBarbour]

I was thinking about this:

http://commons.wikimedia.org/wiki/File: ... rs_-_3.jpg

but not surprising that Niabot is doing it too.

Five months later, and no one took any action on this?

[lilburne]

I was thinking about this:

http://commons.wikimedia.org/wiki/File: ... rs_-_3.jpg

but not surprising that Niabot is doing it too.

Five months later, and no one took any action on this?

Well its 2 years and 5 months, but what I found most amusing about that image is that the most intrusive part of that image is the partly severed child that floats on the right. It ruins the image far more than the watermark sig.

[thekohser]

I was thinking about this:

http://commons.wikimedia.org/wiki/File: ... rs_-_3.jpg

but not surprising that Niabot is doing it too.

Five months later, and no one took any action on this?

Well its 2 years and 5 months, but what I found most amusing about that image is that the most intrusive part of that image is the partly severed child that floats on the right. It ruins the image far more than the watermark sig.

I'm surprised it's not in a "Buildings that look like penises" category.

[Saffron Blaze]

A caution was added to the template but it still directs that watermarks should be "adapted" out.
BTW, I notified the Flickr copyright holder of that penis church they were removing his watermarks.... 9 months ago.

[Andrew]

Hmm. here we have:

Opinion from the Wikimedia Foundation legal staff indicates the removal of watermarks may place the remover at legal risk given the provisions of the U.S. Digital Millennium Copyright Act

...followed by suggestions that if you see an unacceptable watermark, to tag it with {{Watermark}}, which says:

This image (or all images in this article or category) should be adapted by removing the watermark.

...with no hint at all to the viewer/editor that they could be legally liable for doing so.

Once again, the WMF doing their level best to fuck the editor community right in the ass.

Yes. There's not much that can be done now I suppose about Wikipedia helping themselves to the best art photography available (Google Art Project by the way doesn't depend on US Public Domain law - they contract with the museums and their images are either relatively low-grade robot images or licensed from the museum, and in the latter case by no means always the best available).

The least that editors could do is credit the photographers and Wikipedia allow the watermark kept in.

[Saffron Blaze]

I think you will now find the template is a little better balanced.

https://commons.wikimedia.org/wiki/Template:Watermark

[Andrew]

I think you will now find the template is a little better balanced.

https://commons.wikimedia.org/wiki/Template:Watermark

Yes, that's much better. I would certainly like to see the photographer credited. I think the Artwork template at Commons should contain a separate field for the photographer.