Big Tech and You

On saying, “Okay!”….but User Agreements are so overreaching. Does it remind you of anything?

To the prisoners of Big Tech and those left standing:

“She made her choice,” the judge said about Stephanie Sinclair and her photo on Instagram – that her client, Mashable could use it for free, even though they first offered her $50 that she turned down, exercising her right as the owner of the picture to set the value of her work. But Mashable then went behind her back, and posted it through Instagram’s API, and the Mashable webpage it was posted to was filled with advertising, but Stephanie Sinclair received no payment. The photo was on Instagram so that gives anyone the right to use it for free, so said the judge, and that Stephanie Sinclair made her choice, indeed it was a tough choice, but a choice nonetheless, when she signed up with Instagram, giving Instagram extraordinary control over her work. So ruled in a dismissal of a current lawsuit without any discovery, without any jury trial, and without Instagram even being a party to it.

Big Tech has us under siege – what’s ours is theirs and we have no choice.

I’ve been reading that our photographs are considered “goods” to Instagram, not copyrighted photos, yet we are granting Instagram carte blanche rights to our photos for nothing specific and for no good reason. Show us the harm in the terms, they say, show us a “ripe” example of damage. Really?

After all these years, Sinclair v. Mashable is perfectly “ripe” to test the fairness of Instagram, showing what harm it does to creative individuals who depend on rights to make a living. Do we want the client to use our photo for free, or don’t we? Hmm… on a page with lots of advertising making the client a lot of money on content you posted on your Instagram…. hmmm…  photographers always used to get paid for uses like that. All of a sudden we can’t tell a potential client that they can’t use our work for free, or at all, if we so choose. Who is Instagram to diminish us so?

Look around and you will see plenty more “ripe damage” caused by Instagram.

What about damage to artists getting ripped from our identity to our artwork caused by the automated metadata removal of all photos uploaded to Instagram?

What about the dozens of unauthorized mirror websites like insta-stalker.co (not to be confused with Instagram’s insta-stalker.com), picuki.com, picburn.net, and more coming online every day, where you can actually download a full res file of any public Instagram photograph, sans copyright management information that we so purposely embedded into our digital files before uploading them to the internet and posting on Instagram? Our Instagram photos run through the Instagram API like a water faucet, that is turned on when you choose to be public, and off if you choose to be private, then on if you choose to be public again, including pornography probably not yours but it becomes associated with your good name and photos. And it all comes up in Google and stays there until you go to a lot of trouble to take it off, so good luck cleaning up that mess. Hope you have plenty of spare time and money for legal fees. And don’t forget to clear your cookies.

What about infringements that are facilitated by that constant pipeline of infringements? I’ll show you examples.

What about the sudden spawn of orphaned photos?

What about posting photos that are not your own, for example, perhaps you are Lenscratch or Magnum Photo, or any number of Instagram accounts that feature photographers, and the implicit transferable/royalty-free/sublicense/ including the indemnity clause and many other over-reaching terms?

What about photographers who shoot for Instagram accounts and that work for hire agreement you are asked to sign retroactively or else? The value of assignment photography is suddenly reduced to nothing.

What about Instagram takedown notices that should remove infringements right away, but instead, Instagram sends follow-up questionnaires, even when you give them the certified copyright registration number of the infringed photo? Whereas all other takedown notices are taken seriously. But somehow Instagram is above the law.

What about Squarespace, a behemoth website provider, partnering with Getty Images to sell $10 photos to Squarespace website users, while cutting out Squarespace website user’s ability to retain copyright management information in the metadata of their digital photographs in order to show up someday in Google Images with a Licensable badge?

What about paragraph 1202 of the DMCA section of the U.S. copyright law?

I own valuable collections of copyrighted photographs. What an abuse of power for Big Tech to diminish an entire class of individuals who own copyrights. It’s like so many freelancers these days trying to get the promised Pandemic Unemployment Assistance, quarantined, in isolation. Individuals, artists, photographers, creatives, calling, writing, crying, for countess hours every day for their promised PUA, simply wasting away by an invisible force and calculated neglect until we are just gone.

No justice for little people. I can tell you all about it. We never did have a choice. How prophetic it was, 20 years ago, for the grandson of 20th Century monopolist J Paul Getty, the pioneer Big Tech monopolist of stock photography, Mark Getty to announce to the world, “Intellectual property is the oil of the 21st Century.”

Now that the damage to individual artists by Instagram is visibly “ripe,” just the way Instagram likes it, how about some regulation? How about a class-action lawsuit?

#saveourcopyrights