After ‘Obama Joker’ debacle, Flickr changes takedown policy

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Flickr came out looking like the bad guy when it removed an image of President Obama portrayed as the Joker from “The Dark Knight.” Onlookers accused Flickr of having a “political agenda” and being a “bully.”

For the most part, Flickr has stuck to a retort along the lines of: Sorry, kids, but that’s the way the law works.

But the Yahoo-owned photo-sharing site has since retreated, at least in one respect. Flickr revised its takedown policy Tuesday to be more clear when something has been removed as a result of a copyright-infringement claim.

One of the site’s 38 million users suggested in the support forums that instead of completely removing the page in question as it had been doing, Flickr should delete just the image, leaving the comments and other relevant information, such as when the offending image was uploaded and how many hits it had gotten.

That’s just what Flickr says it is now doing. As of Tuesday at 3:30 p.m., takedown requests filed under the Digital Millennium Copyright Act, or DMCA, will result in the image being replaced with one that reads, “This image has been removed due to a claim of copyright infringement.”

Yahoo’s legal team routinely puts the images back up after it receives a complete counterclaim by the original poster -- “complete,” meaning it has all the boxes filled in and appears legitimate. Firas Alkhateeb‘s “Obama Joker” picture has not been reinstated, but that’s because he hasn’t filed a DMCA counterclaim.

One potential problem with this process is that it could easily turn into a merry-go-round of filling out forms in order to have images someone doesn’t like removed without any actual claim to the copyright.

“You can both love and hate the DMCA,” said Heather Champ, Flickr’s director of community. “It’s not perfect,” but, “it’s sort of the process that’s been handed down to us from the government.”

Those rules apply to other sites as well. YouTube, which is owned by Google, has developed a technology called ContentID to help in identifying actual copyright holders, which is heavily used by ...

... the music, TV and film industries. But even Google must abide by the rules set by the DMCA, meaning after it receives a complaint, it is obliged to remove the video in question.

The natural progression, though, should eventually trot the two bickering parties into court to settle the dispute. That’s why Alkhateeb is looking to secure a lawyer before filing a counterclaim.

The strangest part of the “Obama Joker” dispute is that the copyright-infringement claim wasn’t filed by Time magazine, whose cover had been mangled, or DC Comics, whose character had been unknowingly portrayed, or the original photographer, Platon.

Instead, it was Edward Przydzial, a freelance photographer in Southern California, who had apparently filed the takedown request with Flickr.

Przydzial last month contacted the Los Angeles Times, furious that The Times had credited Alkhateeb with creating the “Obama Joker” picture, claiming that he had created the image. Przydzial said he had a “copyright time stamp” as proof he was the artist of not only the original image but also of the one captioned with “socialism” and of another showing Obama as a zombie -- all based on the Time magazine cover. (Przydzial couldn’t provide high-resolution versions of the images we requested.)

His evidence was a LiveJournal post dated Oct. 9. The post shows a date nearly three months prior to Alkhateeb’s Flickr upload, but as any blogger knows, a time stamp can be changed with the click of a button.

This nugget probably won’t quiet critics such as TechCrunch founder Michael Arrington, who wrote, “Yahoo/Flickr should have asked its attorneys if the copyright claim had any validity at all before removing the image.” Thomas Hawk, chief executive of a competing photo-sharing site called Zooomr, questioned whether Flickr’s snap removal was due to “sheer incompetence.”

But for Flickr and many user-generated-content sites, evidence is not required for removal. As is the nature of the DMCA, Yahoo takes claims on good faith, a Yahoo spokeswoman said. When signing a DMCA form, the person reinforces that they’re telling the truth under penalty of perjury.

The lesson is that if you simply don’t like a picture on Flickr, you can fill out a form to have it taken down. But you could be only one jury away from seriously regretting that decision.

-- Mark Milian

Follow my commentary on technology and social media on Twitter @markmilian.