Handling of Microsoft’s copyleft violation

There have been a few accounts on the web about a copyright enforcement action I took yesterday morning. Below are some long details if you are interested in the full details in about 1400 words.

Yesterday morning a Microsoft employee used a photograph of mine in a corporate blog post promoting new features in the Windows Vista operating system and version 7 of the Internet Explorer web browser. The photograph used in the Microsoft blog post pictured Dean Hachamovitch, general manager of the Internet Explorer component of Windows, on stage at the Gnomedex 2005 announcing support for web feed syndication built-in to the next version of his product, bundled with Windows Vista. The image was licensed under Creative Commons 2.0 By-Attribution Non-Commercial and hosted on Flickr, a Yahoo! photo sharing site.

The original photograph

Dean Hachamovitch talking about RSS

I attended the Gnomedex conference in June 2005 and captured a few photographs from a few rows back as Dean Hachamovitch demonstrated support for web feeds in a Windows Vista build. I posted those pictures to Flickr as quickly as I could, trying to find enough Internet connectivity for what I thought would be the first pictures of the announcement available to bloggers under Creative Commons for use in their posts. I used some of the pictures in-context on my own blog while sharing Microsoft’s announcement with my readers.

Full-resolution pictures of my photo set were lifted off Flickr and posted on just about every Windows news and fan site. A few even offered copies for sale and license for anywhere from $8 for a personal print to a few hundred dollars for the photo‘s reuse. I spent the afternoon and part of my evening sending out Digital Millennium Copyright Act takedown notices to sites in the United States, and contacting individual webmasters of foreign domains (if there was legit contact info available).

The picture of Dean Hachamovitch on stage happened to be the most popular photo of the set, evidenced by the almost 22,000 times the image has been viewed on Flickr, driven largely by blog authors who provided proper attribution.

The Microsoft post

On Monday morning, December 4, Sean Lyndersay, a senior program manager on the Internet Explorer team, authored a post promoting feed syndication in Windows Vista on the “Microsoft Team RSS Blog” hosted on the Microsoft Developers Network. My photograph was used in this commercial post to promote the availability of the Windows Vista suite of products and the feed syndication platform on Windows Vista available to developers. The depiction of Dean Hachamovitch wearing a t-shirt with a “Longhorn *heart* RSS” marketing message was part of a larger Microsoft marketing campaign at the Gnomedex 2005 conference showing a renewed commitment to an abandoned browser and Microsoft’s willingness to step out and do something totally new and different by not only adding web feed subscriptions as an in-browser option, but exposing that data and handling as an API to any Windows application.

Creative Commons By-Attribution Non-Commercial

Microsoft used the image I shot of Dean Hachamovitch in June 2005 without attribution and to commercial advantage, in violation of the Creative Commons by-attribution non-commercial license attached to the work. The Microsoft blog post also violated Flickr Terms of Service by not including a link to the original photo hosting page with the use of the hosted image.

Taking action

I had a few options to prompt Microsoft, or the original author, to either remove the Flickr-hosted photo thumbnail from the post or pay a licensing fee. I could try e-mailing Microsoft, but for some reason Microsoft has been routing e-mails from my domain to the Junk Mail folders of its employees for a while (likely issues with users in the server neighborhood of my web and mail hosting provider, TextDrive, and not a custom mail rule by Microsoft admins). I don’t have the telephone numbers of anyone in the Windows group. What would Microsoft do if someone violated their IP?

A few months ago Flickr co-founder Caterina Fake swapped one of her Flickr photos after improper use on Om Malik’s blog, placing the word “GOATSE” in big letters in place of her picture of an awning of the Brickhouse restaurant in San Francisco. Photo swapping is a definite way to grab the attention of the site misusing your content. The Goatse meme is particularly apt for cases of direct or attempted IP theft.

Some Goatse history

The Goatse internet shock meme was used on IRC channels as a means of discouraging the distribution and solicitation of copyrighted software. The channel admins set up scripts to return a file named hello.jpg to users and bots attempting to download pirated software, including the then popular Windows 98 and its leaked builds. The meme made its way to the web, with a special gift from Christmas Island (.cx tld). You can read more about Goatse on Wikipedia.

Goatse developed into a piece of Internet culture as its original use to shock copyright offenders expanded. A few companies seeded peer-to-peer file sharing networks with these shock items, introducing a surprise when someone unpacked what they thought was the latest pirated copy of Windows. Microsoft sponsors the activity of the Business Software Alliance and other anti-piracy groups to track down potential and outright violators of their intellectual property rights and send a message through binaries.

Swapping the Image

I decided to educate Microsoft about the use of images licensed under Creative Commons and hosted by third-party sites by using the same tactics employed in its own fight against piracy, but with a little twist. I edited the Goatse image to remove depictions of anything that might be considered offensive, and placed the Creative Commons circle logo covering up the focus of the image. The modified image was meant to send a message to readers of the Internet Explorer team’s blog that the new picture was out of place, and ensure quick corrective action from Microsoft. I was unsure how many employees in the software division would get the subtle reference to Microsoft’s own anti-piracy efforts.

I sent an e-mail to Sean Lyndersay, author of the Microsoft blog post, shortly after the image swap stating I was the copyright holder and detailing the violation of Creative Commons license and Flickr terms of use. I provided a link to his blog post and advised him to choose a different image. Sean responded with his own interpretation of commercial use, claiming the inclusion of my picture in the post was an appropriate non-commercial use. I sent instant messages to a few Microsoft employees in the Live and Live Platforms divisions to spread some internal awareness and possibly speed up resolution.

The image was later removed from the Microsoft blog, and a future revision of the post pointed to a blog post from the Microsoft archives instead of referencing my image. An apology was later added to the bottom of the post noting the lack of attribution.

As a result of my actions the swapped photo appeared above-the-fold on the Microsoft “Team RSS” blog for a brief period of time late Monday morning. You can take a look at the modified image I used and see a screenshot of the image and its placement on the Microsoft blog if you are interested in further context.

Summary

I license my text and image creations under Creative Commons licenses in the hope they will help other people tell a better story or unleash some sort of increased creativity upon the world of content I enjoy every day. When that content is used beyond the terms of my published license I choose to take various forms of action ranging from e-mailing or sending an instant message to the person (if I have it or can query accurate information without much effort) or by issuing legal documents of copyright violations to the offending site or host.

A member of the Microsoft packaged software team lifting one of my images is definitely a case where the infringing party should have known better, as the company routinely takes action to protect its own IP. Will Microsoft will change its IP enforcement policies such as issuing broad cease and desist to members of its community or guilty until proven innocent tactics of Business Software Alliance audits? Doubtful. I likely kicked off a round of IP discussions on Microsoft mailing lists yesterday with a variety of opinions both ways.

Bill Gates federal deposition There were multiple ways I could have handled the reuse of my content without license, and the Microsoft blog treatment was definitely a unique case for a unique company. Internet Explorer has a bit of a history and happened to take action on the wrong side of copyleft.

19 comments

Commentary on "Handling of Microsoft’s copyleft violation":

  1. Christopher Michael on wrote:

    I would have to say that you took the quickest route to get it taken off. Also probably got a lot of laughs from worker monkeys at Microsoft.

  2. Sriram Krishnan on wrote:

    As a ‘worker monkey’, I disagree.

    I’m very disappointed with you as someone who reads your blog regularly and who has enjoyed your previous work. I’m not speaking as a Microsoft employee but as just a blogger and someone who has spent time on the web.

    Your actions might have been within the letter of the law of Creative Commons, but it sure wasn’t inline with the spirit of CC.

    I don’t buy the argument that your mails were being sent to the junk folder in the past. Perhaps those filters have been fixed now. My point is – you never even *tried*. You never made a good faith effort to warn Sean or anyone else at Microsoft.
    Even if emails weren’t getting through (and if that’s so, how did you mail Sean later?), what about leaving a comment? Using the ‘Contact’ form? Blogging about it yourself. (you know that the bloggers DL internally would have found Sean in a few hours) Contacting one of your former colleagues?
    There are a ton of ways in which you could have reached the IE team if you had wanted to. You just never tried. And no, contacting Sean *after* the swap doesn’t cut it.
    I see a lot of language in this post which keeps referring to ‘Microsoft blog’ and ‘Microsoft Developers Network’. Yes, Microsoft as a company, has final responsibility. But you, being a former employee, know very well how blogs work at Microsoft. Everyone maintains it personally – extrapolating a single individual’s actions to the entire company’s intentions is weak at best.
    Your reference to Microsoft’s practices is incorrect. An effort is made to contact the people responsible all the time – an effort you did not care to make.

    I’m not going to speculate on your intentions but this strikes me as sad and petty. It is worsened by you trying to spin this as a ‘Microsoft trying to steal IP and gets punk’d by the little guy’ story.

    Out of curiosity, if Dean himself had posted this, would you have asked him to take down that photo of himself?

    And btw, just to be safe, I should point out that all this is my personal opinion and doesn’t necessarily reflect those of my employer. And yada yada.

    • Niall Kennedy on wrote:

      I know e-mails from my domain were going straight to the Junk Mail folder based on previous reports from Microsoft employees. I had a difficult time coordinating Microsoft speakers for the Widgets Live! conference in late October and early November as e-mails from my domain were routed to junk mail and Om Malik’s GigaOm.com e-mails were rejected without delivery.

      Sean may have my contact information in his Outlook address book, overriding the spam score of Microsoft’s servers if the message makes it through.

    • Osman S Borutecene on wrote:

      Sriram Krishnan: You said:

      Your actions might have been within the letter of the law of Creative Commons, but it sure wasn’t inline with the spirit of CC.

      I think you misinterpreted the spirit of CC. CC isn’t about showing the other cheek when someone hit you.

  3. Dennis Goedegebuure on wrote:

    Right on Niall,
    I love the way you took action here.
    I hope they learn from this.

  4. davmck on wrote:

    Did your Flickr-hosted photo have a release? It’s typical in the photo world for royalty-free stock photos to require/obtain all recognizable faces have a model release, including crowds.

    It’s rather common for people to take pics at a conf of keynotes, but without the release for faces or all design elements that are recognizable to a company may be protected by trademark, and unless you have permission should always be removed for royalty-free stock photography.

    • Kord Campbell on wrote:

      To further davmck’s remark, I’m pretty sure that all M$ material in the shot is copyright Microsoft. While I’m not an attorney, it would appear that your photograph of Dean is actually a derivative work – of Microsoft’s copyrighted materials.

      If that is indeed the case, would that mean that you would legally be restricted from putting a CC license (of your own) on the photo?

      I’m not saying that M$ had the right to use the photo though – you obviously own the photo, even if it has a derivative work in it.

  5. Mike Rundle on wrote:

    As someone who’s had his creative work hotlinked in a similar manner various times before, I can tell everybody else that the only way you get people’s attention in these matters is to do something outrageous like Niall has done here.

    I’m not going to speculate on your intentions but this strikes me as sad and petty. It is worsened by you trying to spin this as a ‘Microsoft trying to steal IP and gets punk’d by the little guy’ story.

    Unfortunately, this actually is a “Microsoft gets punk’d by the little guy” story to a T, I’m not sure where you would think otherwise. Niall was wronged by a large company and his attempts to resolve it were nullified, so he took further action. I don’t see how poor little Microsoft should be cried over in this situation.

  6. Dummy on wrote:

    I like the way the MS employee whines about separation of MS and employee… Nice. But yet while making the initial post the MS employee was acting as an agent of the company, therefore corporate usage of the CC image. Burn.

  7. Onno on wrote:

    The Dutch TV news once used one of my photos in their broadcast. Complaining about it didn’t have any effect. I sent them a bill of 600 euro which, according to the rates of the Dutch Photography Federation, is 150 euro for display on TV, +200% for not asking permission and +100% for not stating my name. They paid.

    So, you had an opportunity to charge that big fat monopolist and get some money back out of them, and you didn’t do it?

  8. Mike Riley on wrote:

    Well, you definitely took care of the issue the quickest way possible.

    This is a problem and it happens to me often. I have changed the pics to advertise my site, but never done to an extreme.

    I do like how Microsoft took the time to apologize.

  9. John Koetsier on wrote:

    When I heard what you did, Niall, I had to laugh. Great exploit, I thought. But the picture you used was truly disgusting, and I have to say I think it totally cheapens your entire point.

    I would have substituted the original pic for one which simply has my name, blog, and perhaps “this photo used without permission.” And I probably would have tried to get it fixed by talking to someone first. Even an attempt counts for something.

    Judged by speed of MS reaction, though, I certainly can’t argue with the results.

  10. dooby keebler on wrote:

    re: davmck and Kord’s comments

    This photo falls in the category of a news photo and thus would not require either a model release or a copyright permissions.

    If further uses were made with this photo – for instance, using it in a context not related to the news event/topic relevant to the photo – then further permissions would be required. It is not a “royalty-free stock photo” unless sold as such (ie. if it was sold as a generic “man at a conference” photo instead of a photo of a specific news event).

  11. AJ on wrote:

    Niall,

    I agree in principle with your actions, Microsoft of all people should have known better, how Microsoft can say this was not a promotional post or used for commercial use is beyond me as consumers would read the feature set and its ultimately designed to prompt users to go and purchase new Microsoft software.

    You’re right, What would Microsoft do to protect its IP? … one can only wonder.

    AJ

  12. Stephen Downes on wrote:

    I wouldn’t get too caught up in the righteousness game.

    I don’t see anything in the post above about you getting permission to photograph the speaker or about you getting permission to replicate the ‘Longhorn heart RSS’ logo.

    The film industry has just wrecked itself with this sort of nonsense. You have to either blur copyright or trademark images or pay for their use, for example.

    Would your photo have any value were the logo and the screenshots blurred?

    Better to let people use your photo without comment, as it gives you leverage when you are not sure whether you can use some of their stuff in passing.

  13. michael on wrote:

    To those who say this was a terrible thing to do (swap the photo) – No one got hurt and no one could have died in this matter.

    As for getting the rights to take the original photo in the first place – well correct me if I’m wrong but if you photograph someone in a public place (and I think a conference qualifies as a public place) then its fair game (unless they explicitly say no photos etc). You don’t need a wavier or permission. (And stop changing the subject with that too…)

  14. Kevin on wrote:

    I think the point is that you can’t simply cut/paste from an internet source without checking FIRST that it’s ok to do so.

    If there is a license attached, then you should be careful to follow the terms of that license.

    Companies need to be especially careful so as not to be seen as hypocritical, especially when they are as attentive to copyright and licenses as Microsoft are.

    It could also be worth pressing flickr to state license terms more clearly.

  15. pavel on wrote:

    Michael, you can take a picture in a public places without asking for permissions. Conference is not actually a public place because, uhh, it’s a private place open to the public (you can shoot if no one objects). However, if you want to use pictures for advertising and other commercial activities the law (and the common courtesy) requires that you ask everybody that can be identified (you can see his face, he’s not blurred, etc.). Otherwise you are not allowed to. Also, you cannot obtain profit from other’s people work without permission under these terms of the Creative Commons.

    This photo is a “news” one (and you are not planning to make profit out of it) so you are free to shoot their logo as much as you want.

    PM, photographer/cinematographer

  16. Matt Helm on wrote:

    I would argue that a conference IS a public place as someone is promoting or touting news, & by the simple act of standing in front of people, whoever is doing that wishes to be in the public eye. You own the copyright not them and they/he stole your image. To be honest I would have changed the picture to say “This photo would have cost me $xxxx but I decided to steal it instead” as although the goatse was funny it didn’t establish to the uninitiated exactly what the guy was doing on his supposedly privately maintained “Microsoft Team RSS” website.