So if TIME Magazine, DC Comics and Platon Didn’t Send Flickr a DMCA Takedown Notice Over the Obama Joker Image, Who Did?
An interesting report from PDNPulse yesterday regarding the latest in the Flickrgate case of why Flickr decided to censor student Firas Alkhateeb’s image of the Obama Joker. You’ll remember that the image caused all the uproar (here’s a list of most places where the story ran) last week after Flickr was reported to have removed the controversial image from Alkhateeb’s stream and their site.
Flickr’s defense of their removal of the image eventually came from Community Manager Heather Champ (in a Help Forum thread that has subsequently been shut down) who told Flickr users that the reason why the image was removed was that someone filed a DMCA request to take it down.
“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),” stated Champ trying to deflect blame for the deletion on the controversial law. Champ added, “There appears to be a whole lot of makey uppey going in the news and blogosphere about this event.”
But now PDN is saying that they have contacted spokespeople at TIME Magazine, DC Comics, and the photographer who took the original image for Time Magazine, Platon, and all are denying having filed a DMCA takedown notice against this image. Apparently the photographer Platon’s office wasn’t even aware of the Obama/Joker issue.
So if TIME Magazine, DC Comics and Platon didn’t file a DMCA takedown notice against the image, who did? And if someone with no possible IP interest in the image filed it, wouldn’t it be a tad disingenuous at this point for Flickr staff to be hiding behind this takedown notice in justifying their act of censorship? No wonder why when they were asked by the Los Angeles Times *who* filed the DMCA takedown notice, they were told that Flickr wasn’t able to give this information out. Aren’t able to give this information out or won’t give this information out?
I was in contact yesterday with with Alkhateeb. I asked Alkhateeb if he’d learned yet from Flickr who filed the takedown notice and he told me that he hadn’t. “I actually don’t know who filed the DMCA notice,” wrote Alkhateeb to me in an email, “but I figured it must be from Time magazine, since it’s their image. All flickr told me was that one was filed, but not by who.” Alkhateeb said that he is working with the EFF in order to defend the image, adding “I’m in the process of consulting with lawyers now and figuring out my options but so far one guy I talked to at the EFF told me in all likelihood the image is fair use and I shouldn’t have any problems with a long, protracted court case, but well have to see in the coming stages.”
Could it possibly be that this image was censored because a party with no plausible IP interest submitted a DMCA takedown notice and Flickr staff just blindly removed the image — possibly just sheer incompetence? Or could it be that Flickr staff knew that the DMCA takedown request was bogus but wanted to use it anyways to take down a work of art that offended their personal and political sensibilities? The thing is that we just don’t know at this point because for all of Flickr’s claims to be an open and transparent service with their users, they are unwilling to address the issue of whether or not the DMCA request was issued by a party with a valid IP interest. I will say though that if Flickr staff knows that the DMCA takedown request is bogus and is now using it to deflect criticism against them over their censorship act that this would actually not be an open and honest way to communicate with their users at all, that this would in fact be a disingenuous and dishonest way to communicate with them.
I do think that it’s odd that Flickr/Yahoo won’t tell anyone, even Alkhateeb himself, who filed the complaint against him. Clearly Yahoo has informed people of who have filed complaints like this in the past. This shouldn’t be top secret and I’m not aware of any legal reason why a company can’t inform someone about who filed a takedown request against them. Mike Arrington blogged last April about Yahoo pulling down content by Loren Feldman and 1938 Media which clearly identified that takedown request as coming from Scorpio Music. So why is it that now, suddenly, Flickr/Yahoo is so tight lipped about who filed this request? Sounds to me like there just may be a bit more “makey uppey” going on at Flickr and Yahoo than in the news and blogosphere.