Fair Use

There has been much written about Fair Use lately as it applies to Digital Photography because of a wonderfully imaginative and entertaining video that used a photo without attribution.

The ugly side of the Internet showed up, and the video was pulled, changed, put back up, etc.

Without going into the details (again) of that argument I want to propose something much more friendly than "Fair Use".

Fair Use is a doctrine in US law that is nearly impossible to understand – content owners don’t understand it, courts don’t understand it, and the content creators don’t understand it.  It’s not a functional way for any of us to create, publish, manipulate, replicate, reference or utilize online content.  For a lot of reasons.

It is difficult to know what the rules are regarding use of any image, text, video, soundtrack, etc.  Especially since you can often find the same picture all over the web.

If you found this image , for instance on a blog that is not a Microsoft property and there is no attribution at all – and then you see the exact same image in 20 other sites (or hundreds of sites) then how are you to know who the owner is, or what the restrictions are?

What if you read a great joke, like this one ("The world’s best joke").  Which I found on a ton of web sites:

A couple of New Jersey hunters are out in the woods when one of them falls to the ground. He doesn’t seem to be breathing, his eyes are rolled back in his head. The other guy whips out his cell phone and calls the emergency services. He gasps to the operator: "My friend is dead! What can I do?" The operator, in a calm soothing voice says: "Just take it easy. I can help. First, let’s make sure he’s dead." There is a silence, then a shot is heard. The guy’s voice comes back on the line. He says: "OK, now what?"

In the case of the joke, it is pretty easy to do a search and get a ton of hits.  The joke is text – and searchable.  If I was tenacious as hell I could even look at the >13,000 results and hopefully find the creator.  In the case of the drawing, it has text as well.  That helps me find it.  But I find a LOT of it.  Where did it come from? (of course I know about Hugh MacLeod and Steve Clayton – but not everyone has – I’m trying to make a point here!)  But if I didn’t know where it came from – could I easily (reasonably?) find out?  Maybe.  And then I might be able to find out that Hugh and Steve want us to all use it, and to use it a lot.  Freely.

But how about this image:

It is a duck.  Search for duck in Google Images.  Almost 8 million hits for ducks.  It would be extremely difficult for me to find the creator of this image – impossible, I would argue (of course, you can just mouse over or click on the image and see it belongs to Thomas Hawk).  But if I found that image on a site that linked to the image on yet another site (like the image here) then it would be even more confusing to see who "owned it".  It might be impossible to know.

And if I am writing a benign post (or creating an interesting video) and I need a picture of a duck, and I find this image  on a blog, and then use it in my own blog, am I a thief?  If I am, what did I steal?  At worse I stole the potential for the original photographer to make a few dimes.  I certainly didn’t take any food of their table – if this duck image wasn’t available free I would have chosen one of the other almost 8 million "duck" images available to me.

My argument is simple here – if attribution is not easy to determine then retribution should not be an option – other then asking for attribution. If you aren’t managing your product well enough for me to know it is yours, then that should be your problem, not mine. If you stick an image on Facebook with no licensing requirements then I should not have to ask you if there are any.  I assume that if you didn’t care enough to put a watermark on it, or put a license around it, then you just don’t care.

But suppose I found this image on a blog, and I knew who took it?  The initial blog has credit given to the creator.  In that case it is easy for me to find the owner, and if I am not using it for direct commercial gain then I feel it is friendly use for me to use the image in my blog – with attribution.  And I did just that right here.

Simply put, if using someone else’s work directly puts money in your pocket you should pay them something (or get their permission not to).  If using their work for non-profit, you should credit them (if you can find them).

But this is still all so confusing!  What can I use, and when, and where?  I don’t know.  The courts don’t know.  You probably don’t know.

So we can spend millions of dollars on lawyers over the next decade (believe me, it will take that long at least to figure this out) – or we can solve this problems ourselves.  Without the legal fees.  With a jury of our peers.

I’m suggesting the "Friendly Use" doctrine over-rides the "Fair-Use" doctrine and that publishers sign up to join Friendlyuse.org (I just registered the domain, nothing there.  But I’ll give it to anyone willing to help build this – as long as ownership of the domain and application are open-source, GPL, yada yada).

The "Friendly Use" doctrine will basically describe, in simple terms, what is polite about using someone else’s work.  Anyone who is a member of the Friendly Use Organization agrees to have the community (a community of your peers – people just like you who care enough to read this far) determine who is right, who is wrong, and what the final outcome is, be that giving retribution, publishing a retraction, or even financial reward.

In the end we all get what we would get anyway – a community determining the merits of the case.  But this way that jury panel will be educated, interested, and motivated.  A "Digg-like" voting system would be put in place for (x) number of days.  Either side can lobby any way they wish for their position.  In the end the community votes, and decides.  Legally binding arbitration.

I know.  It’s an odd idea.

But it’s not as odd as people spending a thousand dollars on legal fees to recover $50 in damages – or someone spending thousands of dollars defending themselves against "stealing" something that may only be worth a few dollars.  The online community does NOT want to become the RIAA, I trust.  I hope.

It’s not as odd an idea as destroying a work of art because it contained a second or two of "copyrighted material".

Remember when the Taliban destroyed those century old statues in Afghanistan?  That was art.

So is this video.  To remove it from the face of the planet is only different on scale from blowing up a century old statue.  Art is art.

Let’s find a way to play together.  Without giving all of our money to lawyers.  Or all of our freedom to lawmakers.


  1. Yes.  In fact, web sites could include something in their Terms of Use that state something along the lines of "all users agree to have disputes handled through friendlyuse.org".  Lot more to think through about this, but it seems a lot more palatable to me then a decade of lawsuits and take-down notices.

  2. So, you are referring to arbitration?