The Rights of Contributrs: 2.0 and “Free Speech”

My husband, an avid Flickr user, forwarded me the Community Uprising du Jour, this time regarding "censorship" on Flickr. The community is in an uproar over the deletion of a photo and accompanying comments that were provoked by the alleged theft of an image from a Flickr user.

I'm always a defender of copyrighted content. After all, I'm a writer, and if you think it doesn't bother me to see my articles on splogs and points I make lifted by other bloggers, you'd be greatly mistaken. So my husband was a bit shocked when I came down on the side of Flickr.

There were some very simple reasons that I was on Flickr's side, and that was their Terms of Service, affectionately known in 2.0 as the TOS. Most people click a button that says "I accept" without so much as a summary glance at the contents of the TOS, but Flickr's were very clear in this regard:

Under no circumstances will Yahoo! be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service.

and

You agree to not use the Service to:

upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;

I didn't see the original photo and comments, but Thomas Hawk's own blog post seems to sum it up: by harassing the offending party he claims you can get them to stop using your image. While Rebekka Guðleifsdóttir, the owner of the image, claims she wasn't harassing them, but naming the company/site that stole the image and venting her frustration to the Flickr community, as well as reading comments that admitted to harassing the company in question, doesn't that amount to the same thing?

Problems arise when users of Web 2.0 sites, especially Americans, view "freedom of speech" as an implicit right of using a community-driven site. We've already seen much the same reaction from Digg users, and I had the same reaction then.

The "Freedom of Speech" that users claim is based on the American Bill of Rights, and, in fact, only applies to citizens' right to speak out against the government without fear of reprisal. Freedom of the press applies the same idea to the media. Nowhere in the Bill of Rights, nor any site's TOS that I am aware of, does it guarantee users the right to post whatever in the world they want to. In order to do that, you have to buy your own domain, run your own server, and then you can do pretty much whatever your heart desires. If you aren't on your own server with your own domain, however, your rights are limited by the company owning the hardware and software you are posting on, and those rights are spelled out by the TOS that you click right by.

Micropersuasion also references the issue, including the proposed overhaul of copyright law that could impact Web 2.0 sites as well as favor the RIAA and MPAA. Is it necessary? Probably not.

Here's the problem: Web 2.0 relies on user-created content. As a user creating that content, you have two options: do your best to protect your work, using watermarks or low-res images to discourage stealing, or better yet, don't post your work out there for anyone to freely take. You can argue legality all you want, but as even the lawyer Guðleifsdóttir consulted, it's extremely difficult to successfully mount a case.

Situations like this should be a learning experience, both for users as well as content creators. It's probably a good idea to know exactly what it is you are agreeing to when you click that "I accept" button, and it's also a good idea not to post your best work out there for anyone to steal.

In the time it took me to edit this article, Flickr has come back with a response, and it's what I'm now going to refer to as the "Digg backpedal." While they did do the right thing, and cite in their response that the reason they deleted the image and associated comments was because some of the commenters posted personal information for the alleged company's owner and things to do to the company and/or owner. They were RIGHT to delete the thread because of what was happening. But apparently, the 2.0 way is fast becoming a set policy of letting the users run the show no matter what the site's policy is.

The avenue to pursue the theft of the photo wasn't through the Flickr site. It was through legal channels, and if that failed, then sure, blog about it. But starting that type of conversation on the site can't lead anywhere but putting Flickr in an impossible situation, which was exactly where it found itself. Then what? You generate a good deal of bad press for Flickr on blogs like Micopersuasion and others, forcing them to back down. Does it change the fact of the theft? No. Did it get some publicity for Thomas Hawk, who happens to be the CEO of a company he'd like to see compete with Flickr? Yes. So who exactly won?

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