Flickr v. Free Speech. Where Is Their Courage?

One thing I’ve learned over the years is this – screwing over your users while yelling “the lawyers made me do it!” rarely ends well. Particularly when the lawyers are just being lazy, and free speech rights are at stake.

Flickr really stepped in it this time. And they’ve sparked a free speech and copyright fascism debate that is unlikely to cool down any time soon.

Sometime last week they took down a photoshopped image of President Obama that makes him look like the Heath Ledger (Joker) character from The Dark Knight. The image was created and uploaded to Flickr by 20 year old college student Firas Alkhateeb while “bored over winter school break.” It was also later altered yet again by someone else and used to create anti-obama posters that went up in Los Angeles.

Thomas Hawk has a good overview of some of the other details, but the short version is the image was removed by Flickr sometime last week due to “due to copyright-infringement concerns.”

People are angry over the takedown. There are lots of pictures mocking President Bush on a Time Magazine cover on Flickr that haven’t been removed. And of the Heath Ledger Joker character.

The DMCA Excuse

Yesterday Yahoo fired back at everyone who complained, saying that they were required to remove the image pursuant to a DMCA takedown notice. Flickr’s director of community Heather Champ says “In this intance, the Yahoo! Copyright Team here in the US received a complete Notice of Infringement as outlined by the DMCA (Digitial Millenium Copyright Act). Under the DMCA, an individual may choose to file a counterclaim”

She added “We very much value freedom of speech and creativity.”

DMCA abuse is a growing problem on the Internet, and luckily the EFF often comes in to defend people who are unfairly being accused of copyright infringement. And I don’t think there is a lawyer in America who would argue that Alkhateeb isn’t perfectly within his rights to create and distribute this image under fair use and parody defenses.

Yahoo/Flickr should have asked its attorneys if the copyright claim had any validity at all before removing the image, particularly since in this case the image is so clearly non-infringing and also is so politically charged. Yes, Yahoo would have had theoretical liability by not complying if the image was later proven to be copyright infringing. But as I said above, any lawyer could tell you that this is clearly a fair use of the original Obama image, Time Magazine’s copyright and copyright around the movie.

In the past Flickr has deleted accounts of users who are critical of President Obama, but as far as I know nothing like this was done to users who were critical of Bush.

It’s clear that the Flickr team wanted to take this image down. Not only was the image removed, but the entire page was taken down with all the comments to the image. There’s nothing in the DMCA that says you have to do that, too.

Flickr lost my trust over this issue. They failed to stand up for a user who chose to display his work on Flickr over competitors.

They should have had the courage to do the right thing. This is exactly the type of speech that our constitution is supposed to protect. This is not a stolen image. It’s a powerful political expression.

Update: This whole story just went off the rails.