Mr. Topp and the Big Bad Blog

Since the theme of the Big Bad Blog this week seems to be to pick on Facebook, we do not see why we should let up just because it is Wednesday.

Regular denizens of the Internet have likely seen this photo in the past:

That photo, for the record, is of pop star Kylie Minogue, holding a teddy bear after a concert in London. The hand holding the microphone is in an unfortunate location, giving the impression that said teddy bear is well endowed and being pleasured by Ms. Minogue.

All of which, of course, has made the image into an Internet sensation. So much so that we here at the Big Bad Blog are not even going to attempt to attribute it. It is now simply a part of the Internet.

The website Tabloid Prodigy claims that Facebook removed the above photo from a user’s account, and gave the following reason for the removal:

We do not allow photos that contain nudity, drug use or violence.

Clearly a good decision, Facebook.

1. Nudity. That bear is clearly NOT wearing pants.
2. Drug Use. A bear, pantless, on stage with Kylie Minogue in London? Must be stoned.
3. Violence. There is no other reason available to explain how a plush bear’s penis would look like a microphone.

Well done, Facebook.

Thank you for keeping your site safe for the children.

Since we are going on about Facebook this week on the Big Bad Blog, we thought that this would be a good time to share a story from the weekend.

Mr Topp: Hey, you found friends using Facebook Friend Finder!
Karen: No I haven’t.
Mr Topp: Facebook claims you have.
Karen: I guess they’re lying.

Here’s what Facebook says:

So clearly they are claiming that Karen has used the service as part of their advertising. Karen claims otherwise. Is Facebook lying to me?

A second note is that Karen’s profile picture is being used as part of the advertisement. That photo was taken by me — I own the rights to it. Here’s the photo on Flickr:

And here is the license under which it can be used. An excerpt (please note this is not the whole of the license):

You are free to Share — to copy, distribute and transmit the work.

Under the following conditions:
Attribution — You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work).
Noncommercial — You may not use this work for commercial purposes.

So when Karen uploaded the photo for her profile picture, she meets the requirements given by Facebook to use the photo as her profile picture on her account:

By uploading a file you certify that you have the right to distribute this picture and that it does not violate the Terms of Service.

Karen has the right to distribute the photo. But she does not have the right to allow others to use the photo for commercial purposes. That is a right that I have reserved, and if somebody wants to use the photo commercially, a separate licensing deal would have to be stuck.

Quite simply, when Facebook is placing this photo in an advertisement they appear to be violating my intellectual property rights.

Facebook’s default opt-in privacy settings means that Karen has never explicitly granted Facebook permission to use her profile pictures commercially. And even if she had, she has not done so explicitly for this photograph. She has certainly never claimed ownership of it — Facebook merely asked if she had the right to distribute it.

There a few important not-so-cut-and-dry questions this raises.

Is Facebook in violation of my rights?

I own the copyright for the photo, and Facebook is not complying with the licensing requirements. They do not credit me in their little ad, though they do link back to Karen’s profile (who I have permitted to use the photo without attribution).

Is linking back to Karen’s profile sufficient to meet the licensing requirements? Clearly not, in my books.

Also, I consider use in an advertisement meant to expand their social network to be commercial use. Is that a valid assumption? Is prompting their users to use their service more a commercial application, or would a court consider it non-commercial, given the context?

I would consider it to be commercial use, but am wise enough to know that my opinion hardly matters.

Finally, is Facebook doing enough to prevent this kind of violation? Where users have opted out of having their photos used, and where users are uploading photos for which they own the rights, there are no concerns. But is Facebook doing enough for this scenario, in which a person has permission to use the photo on Facebook, but does not own the rights themselves.

Facebook takes the position that its users are permitted to sign over the rights of any photos that are uploaded, but merely asks whether the user has the right to redistribute the photo.

With the advent of Creative Commons licensing, however, it is entirely within reason that Facebook’s users DO have the right to load the photo as their Facebook profile photo, but they do NOT have the power to give Facebook (or third party advertisers) the right to use that photo in an advertisement.

Facebook does not ask this question of its users. But they should. Because here, they are violating my intellectual property rights. And it’s probably not just me — it seems likely that they are doing this on a large scale.

The assumption that they made — that holding the right to distribute an image implies holding the right to grant commercial use of that image — is a blatantly false one.

Which brings us to a final question:

What should we be doing about this?

Last week, you may have heard the announcement: Facebook added a ‘check-in’ feature, to compete with sites like Foursquare.

As usual, Facebook’s implementation of the feature might have compromised your privacy a wee bit.

Leaving aside who can and cannot see where you are when you use the service, what you might be concerned about is who can see where you are when you are not using the service.

That’s right — Facebook allows other people to reveal your geographic location through the service. Which you may not want, even if you are planning to reveal your location to your friends everywhere you go. Every once in a while, we suspect, you might not want to be tracked down.

Luckily, they have also made it relatively easy to turn it off this time: here’s how.

Have some impenetrable jargon that you need to understand? Worry not! Unsuck-it is arrived!

(Yet another photo with an unknown credit, discovered at FFFFound.)

Facebook statuses for historical events.

The problem with the Star Wars movies (other than the first two)? It was all about the toys.