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The "Like" Button. Facebook's barometer of users' overall mood.
Last week, an app developer was in the news for creating the world’s biggest digital blob. Okay, its really just a gigantic compilation of all the facebook profile pictures ever uploaded, arranged chronologically by date of upload. That’s a grand total of 1.2 BILLION images weaved into a massive collage that resembles the dreaded snowy picture that one would often get on their television screens before TV’s became more aesthetically pleasing with their screens and simply displayed “no signal” instead of snow.

Undoubtedly, there is no way that the creator could have obtained the permission of every single facebook user prior to posting their profile pic. Indeed, the creator relied on a special algorithm that scanned facebook profile pages for each user and downloaded the profile pics. All those profile pictures, most of them are photographs that people took themselves, right? And some users probably use paintings and pictures of other things (besides themselves), where the pictures were taken by other people, right? Take this quote from 2011, for instance from the British Journal of Photography:

“Professional photography is creeping onto social network sites more and more with a number of people using professional shots as their profile picture, in shared wedding albums or even submitted as competition entries”.
You see, each profile picture represents a copyright interest, whether that interest is held by the user who took their own profile picture or a photographer who took the photo. Copyright extends to any original work of authorship that involves even a modicum of creativity (as the famous saying goes) where the work is fixed in a tangible medium of expression. Photographs meet this definition and have ever since the famous case surrounding the Oscar Wilde photograph in Burrow-Giles Lithographic Co. v. Sarony. In that case, the court held that copyright did not extend solely to writings or artwork, but could include photographs, so long as the photograph represented an “original intellectual conception of the author”. Thus, if a user took a photograph of themselves, they own a copyright interest in that photo, no matter if it was taken with a Canon Powershot digital camera or a 1 megapixel on a crappy cell phone.
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No, your computer screen is not malfunctioning. These are all the Facebook profiles in the world rolled into one.
So if a profile picture was shot by the user themselves, they get all the exclusive rights to the photo, including the right to reproduce (copy) the image, distribute copies of the work through a sale, or display publicly. The user could therefore stop somebody else from copying or displaying the photos without the user’s permission. Indeed, FaceMash (the precursor to Facebook) was built in this very manner, albeit on the back of a file system that required passwords in order for Mark Zuckerberg to gain access to the photos that were used on the website. Zuckerberg was brought up before the Harvard administrative board for copyright infringement because he had copied photos from databases to another website.

Is the Facebook profile blob app operate any differently from FaceMash? The only difference might be that the photos used in the Facebook profile blob are publicly available (after all, you don’t have to login to access Facebook profile pictures). The owner attempts to speak to the issue of unauthorized use by providing a disclaimer that she is “not breaking any Facebook privacy rules because we don’t store anyone’s private information, pictures or names”. Apparently, the Facebook profile blob just points to the images on Facebook.

I’m not quite sure how the photos are actually added to the “Faces of Facebook” app. From my investigation, it looks like a script compiles photos by running through the Facebook API (a software environment that Facebook provides to third-party developers to create their own applications and services that access data in Facebook). A profile photo actually appears on the Faces of Facebook page, so this qualifies as a “copy”. Are the photos simply “cached” in the same way that a search engine catalogues webpages? Whenever you access a website, your makes a copy of the HTML of that website and stores it on your hard drive for easier access later. 

But surely a simple visit to a website by one user cannot qualify as copyright infringement? If it did, imagine all of policy implications and the flood of copyright suits added to a court system that is already backlogged. From a practical standpoint, it would be burdensome for a copyright holder to have to seek out every single user of its website to prosecute an individual for making copies of the work. Besides, isn’t the very essence of posting content online to have it accessed by other users?

Of course, the calculus changes slightly when the person making a copy of the content is doing something that goes against the wishes of the copyright owner (such as circumventing a protective measure on the website that controls access to the underlying work or using the work in a way that is unauthorized by the copyright owner). 

Google often finds itself at the butt of many of these claims. This issue arose back in 2003 when the New York Times complained about Google’s caching feature, which made snapshots of archived stories at NYTimes.com. Google’s (and many other search engines’) caches work by letting people access a copy of many web pages (stored within Google’s own site) in the form that the page was in whenever it was last indexed. The link to the former website was made by one of Google’s “bots” when it scanned the page. The bot catalogues the webpage content by making a copy of the HTML that defines the structure of the page, with the HTML being stored on a Google server. Responding to complaints about its caching system making unauthorized copies, the internet industry provided a fix by allowing website owners to use a special meta tag in their HTML code <NO FOLLOW> which communicates to a web bot not to archive or index the content on the page. 

Google has been able to defend against many copyright claims based on the Google caching system by arguing that the lack of inclusion of the <NO FOLLOW> tag by a copyright owner grants Google an implied license to archive content appearing on the unmarked page. Moreover, Google has argued that its caching of pages is simply a fair use of the copyrighted content. 

I think that analysis also applies in the case of the Faces of Facebook webpage. Here you have a website that essentially caches images in a similar way that the Google bot does (without making a copy to a backend server). The content that is being copied (the profile pictures) are publicly available to any internet user. The webpage is only copying profile pictures (not the entire profiles of the underlying user). Making a copy of a profile image likely does not impact any commercial market (or value) for the underlying user’ profile picture because most profile pictures probably don’t have a strong commercial market. Finally, the creator of the Faces of Facebook webpage acknowledges that she is in compliance with all of Facebook’s policies governing access to users’ profiles. This last factor seems to indicate that there is some good faith on the part of the Faces of Facebook.

So in summary, Faces of Facebook does not appear to be infringing on the copyrights associated with Facebook profile pictures simply by compiling all profile pictures on one site and linking to those sites. While the website is making a copy of the images, the application is not so commercial or damaging to the underlying copyright holder (the Facebook user) that it cannot be defended against. 

Are there uses of the profile pictures  that could infringe the copyrights of Facebook users? Absolutely. For instance, if you wanted to create a collage of two profile pictures or sell individual profile pictures with particular distortions applied by a visitor to the site, this certainly seems like a use that is not “fair” because it is making a commercial exploit of the profile picture.

Copying of content on the internet is something that we have become accustomed to as consumers in this age of hyper-flow of information. It only seems fair that at least some forms of use or exchange of this information are covered by releases from liability for engaging in activity that is otherwise prohibited by the copyright act.
 


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