Tag Archives: legal


Is Kodak Gambling with Cryptocurrency?

Portrait woman with M.S. / Multiple Sclerosis diagnosis.

A while age I published an article here, about Eastman Kodak, who was entering the blockchain / cryptocurrency hype … To service photographers and the photo industry, they would establish a world wide copy right register, so photographers could be payed in cryptocurrencies. As the New York Times stated in his January 30, 2018 article: “This month, Kodak lent its name to a digital currency called KodakCoin, which is billed as “a photo-centric cryptocurrency to empower photographers and agencies to take greater control in image rights management.” The basic idea behind KodakCoin is to use the blockchain to help photographers manage their collections by creating permanent, immutable records of ownership. The company also struck a licensing deal for a Bitcoin-mining computer called the Kodak KashMiner, which allows users to generate their own cryptocurrency. Kodak’s stock rose more than 200 percent following the announcements, and has not fallen much since.”

Although the idea is initially a good one, and it might benefit the market and individual photographers, some questions were raised about the details of the program … Turns out it isn’t even a full Kodak project at all … Kodak has just a couple of percent share in the project, which is initialized by a somewhat vague, penny stock entrepreneur, Mr. Cameron Chell … In the New York Times article a couple of interesting questions were raised, unfortunately remaining without any satisfactory answers by Kodak  and the people involved … And these are not the only valid remarks, that raise eyebrows and remain unsolved for now …

This sincerely diminishes my enthusiasm about the Eastman Kodak project, and blockchain technology in general … It just doesn’t seem trustworthy anymore … At least not in this, specific case …

Interested in forming your own opinion? Read the article on NY Times here!!


KodakCoin & CryptoCurrencies

Photography dinosaur Kodak steps into a hype with a new, crypto currency: the KokakCoin … It gets around in the industry, raising all kinds of questions …

Kodak will create an encrypted, digital ledger of rights ownership for photographers to register both new and archive work that they can then license within the platform. With KodakCoin, participating photographers are invited to take part in a new economy for photography, receive payment for licensing their work immediately upon sale, and for both professional and amateur photographers, sell their work confidently on a secure blockchain platform. KODAKOne platform provides continual web crawling in order to monitor and protect the IP of the images registered in the KODAKOne system. Where unlicensed usage of images is detected, the KODAKOne platform can efficiently manage the post-licensing process in order to reward photographers. Kodak CEO Jeff Clarke stated: “For many in the tech industry, ‘blockchain’ and ‘cryptocurrency’ are hot buzzwords, but for photographers who’ve long struggled to assert control over their work and how it’s used, these buzzwords are the keys to solving what felt like an unsolvable problem.”

Kodak claims, that the platform will offer:

  • Image Registration. Provides immutable proof of ownership and enables member to take advantage of the platforms wider services.
  • Rights Management. Every license is documented by a smart contract on the blockchain which confirms the copyrights and licensing terms and conditions of the associated images.
  • Transparent Accounting. Receive royalty payments instantly via a smart accounting and reporting system. Community members don’t need a separate accounting system as all payments and accounting information is saved on the blockchain.
  • Community Marketplace. Our marketplace enables coin holders to buy, sell and book products and services such as flights, hotels, models, venues and studios with their coins. The marketplace will also create kickstarter opportunities for startups and service companies.
  • Distribution Platform. KodakOne is building a distribution platform for rights cleared images. On this distribution platform buyers (licensee) and licensors can buy/sell trade images based on the licensors licensing terms and conditions.
  • Post Licensing (Legal Enforcement). KodakOne provides continual web crawling in order to protect the IP of its members. Where unlicensed usage of images is detected, KodakOne can efficiently manage the post-licensing process.
  • Image Tracking. Community members can track usage of their photos and use these insights for more efficient and effective marketing of their assets.
  • Instant Payment. smart contracting payments are executed instantly as all payments will be made in Kodak Coin.

Still a lot has to be explained about this initiative. What is a Kodak Coin worth in terms or Euro’s? Will it be continually fluctuating? Will the value change between the time the customer makes a payment and the time the photographer uses it to actually buy something? How does the photographer buy groceries with a Kodak Coin? Will photographers only be able to transact business with others who are willing to accept Kodak Coins for the products and services they provide? How will usage fees be established? Will there be a schedule of fees for certain uses? Will photographers have to accept those fees or not participate? Will the licensing be RF or RM? Will each photographer be able to set his own fees? Will there need to be direct communication between the photographer and the buyer for most sales and, if so, how will that inhibit sales given the current ways image licensing is conducted?

And a few more questions: what percentage will KodakOne take of sales? They will have to get something for the service they are providing and presumably a lot considering how hot investors think this investment is. (Kodak shares rocketed up more than 120 per cent on news of the KodakCoin’s release.) How will KodakOne get a significant, diverse collection of the images that are in demand? Why would any photographer give their images to KodakOne exclusively? Big risk. If they put their images with KodakOne non-exclusively then the only sales KodakOne will record are the sales made through KodakOne. Potentially, there will be a huge number of other legal uses out there that Kodak can’t track including all the uses made worldwide prior to actually launching KodakOne. In order to do any legal enforcement, they will have to come back to the photographer to determine if the use was authorized or not. How will this marketplace get instant credibility and attention from image buyers? Getty Images, Shutterstock and Adobe Stock currently control 65% to 70% of the worldwide market. Why will customer suddenly switch to Kodak?

My personal and favorite question: “Do I need to switch from my present agencies, and license all of my images (made in the past ten years or so) through Kodak Coin? Thing is: we’re all going to have to learn about cryptocurrencies and blockchains. And it’s worth to stay on top of this new development. However, it’s way to soon to make final decisions. For now I am curious on how Kodak implements this idea, and how existing industry adapts to this new development.


Embedding Images: The Legal way to Steal 

Using protected images without permission, without payment of royalties or even giving credit to the creator. In the European Union you can do that, provided you do so via embedding. Creators and sellers of images refuse to accept this legal loophole. They are not dinosaurs failing to embrace progress: this is where legislation is lagging behind.

Embedding

Embedding, also referred to as inline linking, framing, and, typically when applied without permission, hotlinking, allows you to make content visible on multiple webpages via the original location. By means of a link to the original website an image, but also text or video, can be shown on another website.

The embedded content acts as a seamlessly inserted window to the website where the content is hosted: the content appears to be part of a third party’s webpage, but is in fact retrieved and loaded via the website where it is hosted. In 2014 the Court of Justice of the European Union has ruled that the embedding of protected content without permission constitutes no copyright infringement.

Embedding without permission is legal in the EU

Normally, when copyright applies, the creator is in control of what can and cannot be done with his work. The creator is the person who decides where his work is published and whether royalties need to be paid for the use of his work. The problem is that embedding is always legal in the European Union, with or without permission. This has opened a door to legally using protected images without paying royalties. Whoever posts content online has no legal means to counteract hotlinking.

The technical details regarding the embedding of content greatly influence the legal side of it. Embedding acts like a link to the original content. To embed content, copying or downloading the content is not required. Embedding therefore does not create an illegal copy. The content is not published elsewhere: you are in fact viewing the original via a link. Strictly speaking, embedding only increases the visibility of the original. This circumstance has led to the conclusion that embedding is in accordance with copyright laws and is therefore allowed. Even without permission.


Why embedding without permission should not be legal

Embedded images are used in exactly the same way as purchased images. You may reason that the embedded content is not actually posted on another website, as brought forward in the abovementioned case law, but it is visible elsewhere. And is so for a reason. The image is obviously not randomly selected and displayed, but is functional to the content in which it is embedded and as such adds value to it. The image is being used for profit, without permission or a mention, and without paying royalties. According to creators and stock photo agencies the impact of embedding protected images without permission is therefore no different than that of creating and publishing illegal copies of protected work.

By allowing the embedding of protected content a situation has been created which seems contrary to the whole point behind copyright laws; it limits the protection of creator rights substantially. Embedding is a legal solution with illegal characteristics: it is the legal way to steal images.


Embedding and bandwidth theft

Embedding not only affects copyright issues. The embedded content is not multiplied, but is retrieved and loaded via the website where it is hosted. When retrieving and loading web content bandwidth is being used. Bandwidth use is not free and is also limited for most websites. When that limit is reached because of embedded content, the website owner literally has to pay the price for the additional bandwidth use, or the website may be taken offline. Embedding can lead to a situation where the creator actually has to pay for the unauthorised use of his works; a bizarre side effect of the European legislation with respect to embedded content.

The distinction between embedding with permission versus embedding without permission (hotlinking) is important. YouTube, for instance, consciously and explicitly offers the option of embedding content. YouTube is well aware that running heavy video files via your website or blog greatly affects the loading time of a webpage and the website’s bandwidth use. To make the sharing of video (with added paid ads) more appealing, their website is designed to support embedding and is able to process the bandwidth use that comes with that. The average website is but a dwarf compared to an online heavyweight like YouTube and will therefore reach the limits of its maximum bandwidth use far sooner.

Unauthorised use of images: no small matter 

The unauthorised use of protected images is already out of control. Take for instance the example below: that image can be found on 21,000,000 online pages, yet has only been purchased 4 times. There is no balance.

Search Results on Google Images

Of course that number of hits in this Google search result includes the official channels where this image is shown for promotional purposes, like stock photo agencies, but a few dozen functional hits is but a fraction of the total of available views for that photo.

This case is not unique. Photographers, stock photo agencies: it happens to any creator or seller of images. A watermark offers little protection against hotlinking. Any watermark is rendered useless by shrinking the image to the point where it becomes virtually invisible. Now consider that a stock photo agency offers millions of images. The loss of turnover is huge.

Embedding is a stealthy phenomenon. It managed to stay under the radar for a long time, hidden among a lengthy list of hits when researching the online use of images. Because where does one begin assessing and addressing unauthorised use, when you find dozens or in some cases even millions of hits per image? Hard data regarding the occurrence of hotlinking are currently lacking. Yet now is the time to address the issue. The industry is already at the point where it cannot afford a further increase of unauthorised and unpaid use of protected images, but that is exactly what is about to happen.

The practice of embedding is increasing

Vincent van den Eijnde, director of Pictoright, author’s rights organisation for visual creators in the Netherlands, believes that hotlinking is still a latent problem: “People have not yet caught up with the legal facts. Once the word truly gets out, the damage will become really great really fast.”

Van den Eijnde’s estimate seems realistic. Even without hard data it is a safe guess that high volume users of ‘free images’, such as bloggers, mostly still pick images with a creative commons license and illegal downloads, depending on the level of knowledge of and respect for copyright laws. When you do an online search for royalty-free or free images, you still primarily find information about the public domain and copyright laws. The moment online searches of that type start yielding information about embedding content in the top results, the practice of hotlinking is expected to really take off.

Hotlinking is not new, but knowledge of it used to be limited to a relatively small group of people with more in-depth knowledge of html, mostly web builders. Through the publicity surrounding the abovementioned case law, knowledge regarding hotlinking is spreading little by little, together with the realization that it is legal in the European Union. The fact that hotlinking offers legal access to an infinitely larger pool of images than otherwise available for free use obviously is a great incentive to resort to embedding: this is a growth scenario in the making. And anyone can do it: step-by-step instructions on embedding in html are easily found online.

Verkoop geschiedenis

The consequences of unauthorised use of images

Creators and sellers of protected images are already struggling to keep track of and follow up on illegal publication and use of their protected works. Now hotlinking is adding to the amount of unauthorised use, which, on top of that, simply has to be put up with at this point. Excessive unauthorised use leads not only to missed royalties per use. The increased visibility of works poses another problem. Images which can already be viewed ‘everywhere’, lack exclusivity and uniqueness, and are of less value to potential clients. Unauthorised use of protected images makes the value of entire portfolios and catalogues subject to inflation.

Work which remains unpaid on an ever larger scale, leads to increased financial damages and eventually to a decrease of high quality works. After all, it is not realistic to continue to involuntarily make works available to the public and at the same time continue to invest in the creation of high quality images. The aspect of investment in the creation of photos and images is often overlooked or trivialised. The reality is that a photographer works with expensive equipment, has travel expenses and spends many hours creating images. That one photo the public gets to view, is preceded by an extensive process. When going through that process ceases to be profitable, more and more photographers will be forced to discontinue their business, in the process limiting the selection stock photo agencies are able offer.

Image creators face a catch-22

“So, then don’t put your work online.”

If creators would get a Euro for every time they hear that… This line of reasoning is obviously void of logic. Every serious entrepreneur can be found online and shows (examples of) his portfolio. Consumers are ever more visually oriented. Words are therefore to be enforced by images. A baker not only describes his assortment, but also aims to work up your appetite with visuals. A clothing brand shows what look you can create with items from their collection. Photographers show images to indicate what type of work they have to offer. This is how you do business nowadays.

Online visibility is essential to even get the opportunity to showcase your work online. In order to be found via search engines and find new clients, you need to aim for the top search results for relevant keywords in search engines (SEO). In order to achieve this, you need to post strong content online, and regularly add to or update that content. A photographer simply cannot avoid the online posting of high quality works. Moreover, stock photo agencies serve as a web shop for photos and images and therefore have no other option but to display everything they have to offer.


Technological developments vs. legislation

Creators and stock photo agencies have obviously been put at a disadvantage by the abovementioned court rulings, but they beg to differ that this ends the debate on the lawfulness of hotlinking. In that case law the focus has been on the technical details, where, in short, it was deducted that embedding does not represent publication to a new audience. The consequences of hotlinking have since become more apparent. The focus of the debate has therefore now shifted to the question whether the effects of the embedding of protected images, as felt by the creators, is in the spirit of copyright laws.

Technology evolves at a rapid pace, whereas legislation moves much slower, but in the end laws can change. Industry organisations such as European Visual Artists (EVA) and Centre of the Picture Industry (CEPIC) therefore focus their efforts to raise awareness regarding the downsides of hotlinking for the industry on the European Parliament, especially now that there are new European directives in the making.

Sylvie Fodor, director of CEPIC, says that several members of parliament who have in-depth knowledge of copyright, following from their background in journalism or the cultural sector, have already been convinced of the negative consequences of allowing the hotlinking of images. Furthermore, some encouraging amendments have been put forward, which would encompass embedding. CEPIC has also presented their views on the draft-directive proposed by the European Commission and how it can be improved to cover embedding in an official public hearing of the Committee on Legal Affairs (JURI). Fodor thinks that there is a slight chance that legislation will be changed within the present negotiations on copyright in ‘Brussels’.

Protecting images against hotlinking

At the moment the only way to counteract hotlinking is online protection of content, using .htaccess. Through .htaccess hotlinking to images can be blocked or a redirect can be created which shows an alternative image (switcheroo) on the webpage where the hotlink was placed. A switcheroo can for instance be used to display an image with a message that embedding is not appreciated. Your own website will remain intact and will display the correct image.

But when you ask image creators that is not the type of protection they seek in the first place. According to them, what is needed, first and foremost, is a legal ban on unauthorised embedding of protected images, by treating it like illegal copying and downloading. After all, the effect of embedding protected images is equal to that of illegal copying and downloading: the image is being displayed without payment of royalties, which would otherwise not have been allowed, resulting in financial loss.

*Rulings of the Court of Justice of the European Union:
Nils Svensson and Others v Retriever Sverige AB
BestWater International GmbH v Michael Mebes, Stefan Potsch

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