Regretsy received a nasty-looking lawyergram claiming copyright infringement, requesting retroactive licensing fees and implicitly threatening a lawsuit to collect damages. What was their sin?
Apparently, that they had used the images in question for purposes of commentary — specifically, negative commentary. Regretsy posted a mocking review (okay, a really, really funny mocking review) of objects being offered for sale, reproducing the seller’s own photograph of the objects. The seller tried to shut down the negative review by claiming that Regretsy didn’t have the right to reproduce the photograph. But the seller had never claimed copyright infringement on other, positive reviews elsewhere — as Regretsy delightfully pointed out, in several instances she had even posted in those other forums herself thanking the reviewers for their kind comments. So this was clearly not about copyright. This was about silencing a critic, using copyright as a tool of censorship.
We take no stand on whether Regretsy’s claim of “fair use” is legally accurate (we don’t even much like the term), nor on the quality of the objects or the photograph. And we certainly don’t mean to imply that Regretsy takes any particular stance on copyright reform themselves (sometimes they even confuse plagiarism with unauthorized copying, calling them both “stealing” when only the former is.) But they knew censorship when they saw it, and they called it what it is, in style.
We see examples like this overzealous seller all the time. How often is copyright used as a cover for censorship, commercial or otherwise? It’s hard to say, because unfortunately , even though copyright is a government-granted monopoly, the governments that grant it make no requirements for tracking how it’s used. If every claim of infringement had to be delivered through (or CC’d to) a database at the copyright office, so we could see exactly how these monopolies are wielded, that would be give us some real information about whether copyright principally serves even its nominal goals. Also, people might suddenly become a lot more conservative about claiming “infringement”. Right now, all it costs to intimidate someone is the time it takes to send a letter (and the larger intimidators have automated even that part, so the cost is very close to zero for them).
In any case, hats off to Regretsy for publicly calling out censorship when they saw it. Monopolies on information and culture inevitably lead to infringements on freedom of speech and commentary; it’s great that Regretsy didn’t take the easy way out when someone tried to censor them.
Before I get to the heart of my response, I’d like to make it clear that I agree that the creator of the photos in question was trying to squelch negative commentary. So I agree with the broad point. However, I think the fair use argument may run into problems in this case if legal action were actually pursued.
The person who threatened to sue may have had a case because Regretsy made the images in question available to others with a request that the Regretsy audience create their own derivative works using those images (which would happen to be mocking, but that’s besides the point). I believe that the redistribution and request for others to use the materials takes it beyond fair use as far as Regretsy’s role is concerned. Regretsy’s own commentary is one thing, but providing the images to others with a request to use them is another matter. Quite aside from the censorship issue, this factor complicates the narrative. Had Regretsy pointed individuals to the location of the photos on the web and told them to create their own commentary, then the actual actions by the site viewers would have been critical commentary/fair use, but redistribution by Regretsy is a separate action that would seem to run afoul of copyright law, independent of fair use or critical commentary exceptions.
The Regretsy response to the claim of infringement picked the argument you highlight above, namely that the request for license fees was discriminatory in nature against them, but copyright law does not require that content creators/owners adopt a reasonable and non-discriminatory (RAND) policy for licensing. In other words, if I agree to let you copy my image for free because I like what you do, there is no obligation that I let anyone else copy it for free. Similarly, if I agree to license an image to you for $20, I can still turn around and try to license it to the next guy for $20,000, for any reason I want (or for no reason at all), even if I am stupid to do so. I could decline to let you use the image because I don’t like your teeth or think you dress funny. To show why this argument isn’t as clear even from the moral point, think of it this way: if the creator of the images in question had to make them available for redistribution through Regretsy for negative critical commentary, why wouldn’t a photographer of synagogues have to make them available to a white supremacist site for redistribution so its members could deface them?
I am not trying to engage in an argumentum ad Hitlerum regarding Regretsy (I think the site is hilarious and the way it pokes holes in the pretentious is great), but rather I am taking an extreme example of how that reasoning could be applied. Legally, what would the basis be for differentiating between these two cases? (I’m not speaking of the morality of the two cases, where I see a clear difference.)
So while I agree that the real motivation here clearly was that Regretsy had ticked off the copyright holder, from a legal standpoint I don’t think that matters. Please correct me if I’m wrong, but if this went to court, I doubt the motivation of the copyright holder would matter in a finding of material fact about violation of copyright. (Of course, the likelihood of this ever going to court would be pretty low since the legal fees would cost more than the amount sought, so I doubt we’d ever see a legal judgment on this particular matter.)
Actually, the images that Regretsy provides are links to the original post on Etsy which gives sufficient link back. This has generated many sales for Etsy sellers that have been featured on Regretsy. This is ALL about squelching negative feedback.
Regretsy did not ask it’s readers to create dirivitive work, they asked their readers to continue the parody work they were engaging in and share it with the other readers within that specific blog post. Parody is for the purpose of mockery, and is covered by Fair Use.
All the reader created images were covered as parody, and no one took the artists original work, used it in their own work and tried to pass it off as their own property. Which is what your point would have actually covered.
Sure; we even acknowledged this in the original article, saying that we have no idea if Regrety’s legal claim would hold up.
“Fair Use” doctrine is pretty toothless anyway — it’s a sop tossed to the public and used to justify all sorts of restrictions: a tiny positive space used primarily to define a huge negative space. Honestly, I think the more time people devote to considering whether this or that use is “fair”, the more the monopoly wins. Once we’re in that frame, we’ve already lost the game. The question to ask is: why do some people think they have the right to tell you what culture you, or Regretsy, can or can’t share with others?
This site is not about learning to play rigged rules better. It’s about exposing the rigging.
I’m not so quick to praise Regretsy on their understanding of copyright issues. One recent post invites readers to “flag” an Etsy seller that Regretsy believes is infringing on another person’s copyright. While the evidence that there may be infringement is convincing, there seems to be a basic lack of understanding that enforcing copyright is a legal matter and the responsibility of the copyright holder. The “flag” button that Etsy places on each listing page is for reporting inappropriate or prohibited items, not copyright infringement. Like most similar sites, Etsy has a process for reporting copyright infringement under the DMCA, and when they directed Regretsy and its users to this process, Regretsy ridiculed them and the process. Apparently Regretsy thinks copyright issues should be settled by mob rule. In Regretsy’s world, an anonymous click of a “flag” button should be enough to have content removed for copyright infringement, even without the knowledge or participation of the actual copyright holder. That would be a scary place for free speech.
A small thing, but maybe worth a little discussion; sorry for my long-windedness.
Certainly, the legal force of Winchell’s call for her readers to flag the store is nil. However, the point of the flagging
was not to directly result in action but to bring the issue to the attention of those who run Etsy, whom the Regretsy fans hoped would close the store. The assumption (or at least hope) seemed to be that, if the webmasters knew one seller was passing off another seller’s work as her own, they would enact some form of discipline. The situation was exacerbated by the seller herself (and the evidence of her infringement was, as you say, “convincing”) making light and even gloating over the issue in comments clearly designed to further anger Winchell and her readers.
Would I like to live in a world where legal action could be taken in this matter without the participation of the copyright holder? No. But it seems well within Etsy’s purview to protect their sellers in some way when one seller copy’s another seller’s work and presents it as her own (a practice I fail to see as so “unrelated” to plagiarism as the glossary here claims, but that is an issue for another day). Etsy could, for instance, shut down the store and allow the seller to create a new store. She would lose the feedback she’s built up, but it would likely cause her little to no financial hardship, and yet Etsy would at least have a made a point concerning its position on such unauthorized copying and selling. Perhaps if the actions continued after such a warning, Etsy could then simply ban the offending seller from the site.
As an instructor, I have received student papers with “unauthorized copying.” In such cases, it is the job of myself and my department and college staff at the university to assess the weight of the infraction and enact appropriate measures (such as a 0 for the paper, an F for the course, or even expulsion). I do not need the original author to complain, nor is legal action necessary to protect the rights of the author or the principles of the university.
Before the Regretsy post on this seller, I had never seen the design in question. I had no evidence other than Regretsy’s word indicating who was copying whom, or that any unlicensed copying was going on at all. Nowhere in the post does the author indicate that the owner of the design had not authorized others to copy it. This is the basis on which Regretsy asked its readers to flag the site – a process which is anonymous and provides no evidence. Etsy’s established process in these matters is for the copyright owner to indicate exactly what is being copied (the “flag” does not indicate if it is the design, the written description, the actual photographs, or what exactly is infringing. It simply alerts Etsy to the page itself). Etsy also asks for some kind of evidence that the person making the complaint has established copyright.
These two things – what is being copied and who has the right to it – are the very least Etsy should have in hand before removing any content. Flagging a listing provides neither of them. Regretsy apparently thinks they do not need to provide this most very basic information before Etsy should remove the content, and when Etsy provided them information on how to direct this information to their legal department, they scoffed at it. It’s mob censorship.
By the time Regretsy readers were flaggin the store, the seller herself was boasting in her banner that she had copied another seller’s design. This informaiton was given to the Regretsy readers, and it was this gloating that prompted such a response. The “flag” indicates whatever the “flagger” wants it to indicate, as a flag is accompanied by a written message. Many who flagged the store noted in their flag that, again, the seller herself was boasting of having copied her design from another seller. If that is not enough for Etsy to close the store, at the very least the seller who did the copying was (and continued to) user her banner and profile to “discuss disputes with others or with Etsy,” which is against Etsy’s policy and an infraction for which Etsy can and has closed stores in the past. This is not mob censorship; this is group anger at a coporate entity which regularly fails to deal with obvious violation of its own rules and tends to take umbridge rather than hints when its customers complain about ineffective or inexplicable company policy, copyright or otherwise.
Violations of Etsy’s terms of use and violations of copyright are completely different matters, of course, and ultimately Etsy can remove any content it wants for no reason at all under its terms of use. Using the banner for personal bickering is a violation of Etsy’s rules, but that is not why Regretsy called on its readers to flag the store – it was to draw attention to what it presumed was copyright infringement.
It was Regretsy that defined this as a copyright matter, and made assumptions about the copyright status of the design. Someone boasting that they had copied an image provides no information about how that image has been licensed. If it is an image that the copyright holder has freely licensed, then there is no infringement. Also, the “copying” among Etsy sellers often goes several layers deep – the person being copied may have in turn already copied that image or design from someone else. In fact Regretsy sometimes documents this kind of activity by displaying several sellers all offering very similar items. Regretsy makes no attempt at establishing priority or right before deciding who has the “right” to the content.
The “cookies love milk” T-shirt concept is almost certainly not original to the Etsy seller that Regretsy claims is being copied. A quick google search brings up this shirt for example, and this one, and this one, and this one, and this one and this one, all very similar in design. Who is “copying” whom? I don’t know. Regretsy doesn’t know, either, but claims to. And when they direct a campaign to remove content – no matter how disagreeable they find it personally – based on a string of assumptions that they have not verified, that’s a problem. It’s really not so different than what this original blog post praises Regretsy for rejecting – it’s trumping up a “legal” argument where no legal right has been established to remove content Regretsy finds objectionable. When Regretsy readers said “this is copyright infringement” Etsy replied, “OK, please prove it.” Regretsy laughed.
And I think it is important to note that according to Regretsy, the content was taken down, but by the seller and not by Etsy. The flagging did nothing – flags are not reported to the seller, only to Etsy staff. It was intimidation that got the content removed, ultimately. That’s even scarier for free speech than people wielding half-baked legal claims.
Agreed. I mentioned that we’re not assuming Regretsy has any particular position on copyright reform, and perhaps I should have said that we’re not assuming they pay any kind of thoughtful attention to copyright at all.
I really meant the article to be about the general phenomenon of copyright being used for commercial censorship, not about Regretsy in particular… though it definitely helped that the Regretsy post is so hilarious :-).