It’s not a problem for someone to use our works in their own—they are available to the public under a Creative Commons attribution license—but that certainly doesn’t give a claim against our original. And their graphic had no attribution. (The Action Camera skateboarder illustration on the left appears to be an Adobe stock image.)
For EFF this was more amusing than threatening. We knew instantly that we needn’t worry about the implied threat, and if things went badly, we probably have more IP litigators per capita than any entity that’s not a boutique IP litigation firm. So we wrote back explaining the situation, and expect that will be the end of this.
But for many entities, it can be quite scary. Even if they are secure in their rights, the potential for a costly or time-consuming conflict may lead to a rational choice that a link is a low-cost solution. They might wonder if this misunderstanding will escalate into a DMCA takedown, potentially interfering with the availability of the page until the improper notice is resolved. Even if they disregard such a weak threat, dealing with it has the serious potential to take time away from running their operation.
We have not named the email’s sender. There is no indication that they are in the business of copyright trolling, it likely was a simple mistake, and we had no desire to use our platform to mobilize a shame campaign. Moreover, we’re well aware of the Streisand effect and see no need to provide the very link they seek in our discussion of why they shouldn’t have demanded a link. Instead, we hope that this example serves to show how copyright demands can be misused. Below is our response:
Dear [NAME REDACTED],
I am the General Counsel of the Electronic Frontier Foundation (EFF) and am writing in response to your email of September 10, in which you asserted that the illustration of a police officer in our Body Warn Camera page, https://www.eff.org/pages/body-worn-cameras, violated your company’s rights in the image used in your July 4 tweet, and demanded that we remove the illustration or provide a commercial link to your company on the eff.org website.
As an initial matter, please allow me to correct a fundamental mistake. The illustration on our page is an original image created by the Electronic Frontier Foundation, specifically our talented Art Director Hugh D’Andrade. Accordingly, you have no right to ask EFF, or anyone else, to remove our illustration, much less to provide your company with links or other benefits in exchange for its use. To the extent that you have sent similar demands to anyone else regarding our illustration, you will need to retract them immediately.
This is not to say that you can never use our illustration. In addition to your rights under fair use and fair dealing, EFF makes its content available under the Creative Commons Attribution 3.0 United States (CC BY 3.0 US) license, see https://www.eff.org/copyright. Thus, you would have had permission to use our illustration in your tweet if you had simply complied with the attribution requirement. If you wish to continue to use the police officer illustration, please be sure to comply with these license terms.
Finally, while we understand your desire to get links to your company’s website (and the SEO value of a link from EFF), we are disappointed and surprised that you would use copyright threats to try to make that happen. Baseless copyright threats are an ongoing problem for the Internet (see examples in our Takedown Hall of Shame https://www.eff.org/takedowns). Rather than contributing to that problem, we suggest that you and your company endeavor to earn that attention through the quality of your offerings.
In order to better educate the public about the issues with copyright demands, please note that we are blogging about your email and this response, but will endeavor to keep your name and the name of your company out of it.
Please let me know if you have any further questions.
best regards,
Kurt
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Kurt Opsahl, kurt@eff.org
Deputy Executive Director and General Counsel
Electronic Frontier Foundation https://www.eff.org/
ph: +1 415.436.9333 x 106 \ fx: +1 415.436.9993 \ @kurtopsahl