Monday, January 12, 2015

Thoughts on MPD

It's been three days since MPDROLET was abruptly deleted from Tumblr. The basic facts have been discussed elsewhere online so no need to go into detail. He sourced photos without permission. Someone (Apparently this guy's identity-stealing doppelgänger. More on that in a future post.) didn't want his photo sourced. He filed a DMCA takedown request. Tumblr gave MPD a few warnings, then pulled the plug. 

Bummer. But there may be an upside. If there's one good thing to come out of this, it's that MPD is the perfect test case for these issues to shake out. Mark is talking with Tumblr administrators today. Maybe his Tumblr will be reinstated. Maybe not. For now his archive is toast, but an abridged version is viewable here. Either way I think this marks a watershed moment, because things could've gone in a different direction in this case, but they didn't. I suspect the result will be a chilling effect on many Tumblr curators going forward. For one thing, all the people who've been reblogging Mark's posts will need to source material elsewhere. Beyond that, anyone who puts fresh material on Tumblr created by someone else will need to think twice about the possible ramifications. 

Maybe that's what Tumblr intended but I doubt it. More likely it's the product of a front office blindly obeying corporate doctrine.  The absurd irony is that Tumblr is built on sharing, and without reblogs would not exist. Now they've cracked down on one of their most popular users for sharing. Tumblr wants to act as if its hands are clean. Sharing without permission? Who, us? Not only is the stance hypocritical, it may help kill the platform. 

But before getting too far into Tumblr, let me talk a minute about Mark Peter Drolet. His ability to unearth new photos and new artists was extraordinary. Where did he find the time or the energy? Who knows. But the vein was rich and it came in a torrent. I've seen a fair amount of photography online, but MPD consistently exposed me to unfamiliar artists. And it was not just any work, but usually well considered. The breadth and depth was pretty unique in the fine art photo world. In fact it made that world look rather uninventive in comparison. Was the future of photography really this? No, to me at least, MPD showed a more promising direction. If FOAM was the Grammies, MPD was the friend with the crazy record collection who turned you on to good stuff every visit.

Mark expounded on MPD in my 2012 Q & A: "I'll be honest that I do take pride in the fact that this evolving collection has in many respects come to be an archive of sorts, a deepening well of resource for a bunch of the teeming masses that turn to Tumblr for eye candy or conversations every day. My feeling is that on a good day I'll unearth a bunch of golden nuggets, many that have been seldom seen--even by the seasoned photography connoisseur. There's no doubt that on some days that's what fuels me--the fact that I know I'm bringing something somewhat original to the massive pool of curation that we see here month in and month out."  To read that he considered it "an archive of sorts" or "a deepening well of resource" seems rather tragic now that it's been destroyed. 

Unfortunately Mark may have built his house on a bed of sand. Current copyright law undermined the whole enterprise. I can call out Tumblr as hypocritical but they're probably just following the advice of their legal team. Yeah, do what the lawyers say. What could ever go wrong with that? 

I'm no expert in copyright law. I'm just a simple photographer. But something here seems wrong to me, and I'm not the only one who feels this way. Several Tumblr petitions have circulated calling for MPD's reinstatement. This Facebook post turned up some interesting opinions, as did this one.  Simen has articulated a nice argument here about MPD and copyright issues. According to Simen "we live in a post-copyright era." I'm not so sure about that. I think copyright still has a place. Anyone who creates content deserves a way to own and protect it, and even make a living from it (although good luck with that if you’re a photographer). But I'm not convinced that online sharing threatens those protections. 

Sharing is Caring (from Collector's Daily)

I think of reblogging as loaning out a book. Hey, look at this photo. Isn't it neat? Loaning books is of course perfectly permissible under copyright law. The original author maintains rights to the image. The loanee doesn't claim the content. The work circulates. Win-win. You can even sell or give away a book and that's also permissible. You can scribble or deface or rip the book, or a library can circulate the book freely, all under copyright law (although libraries would almost certainly be outlawed if initially proposed in contemporary society). Many people have adopted this logic to the internet, posting reproductions of pages from books online. (Here is a recent instance selected from countless examples. Here's another of my favorites). Some have posted videos of book pages being turned, to show what's in a book. All of which is kosher under copyright law. 

But when a page from a book is converted into a jpg of the photo, some switch is activated and copyright issues shift. This is ok:

But this isn't, at least according to Tumblr:

That seems ridiculous to me. So one possible method of restructuring copyright law would be to treat online images more like books to be loaned and shared. And a jpg fits the task perfectly. It's infinitely reproducible. It's made for sharing, and the internet is one massive library. When you send a book out into the world you relinquish your claim on its use. It can be bartered or sold or destroyed. Why should a jpg be treated any differently? Trust me, once it's online you can kiss it goodbye. It's out in the wild. Perhaps it's time for copyright laws to adjust accordingly.

One large factor in all of this is the intent of the reproduction. Sharing for commercial purposes (i.e. selling or claiming ownership of someone else's content) should remain illegal. That's stealing, and the laws should protect creators from that. But that was not the case with MPD, nor with the vast majority of other curated Tumblrs. Perhaps there are some Tumblrs out there produced for profit but if so I can't think of any. Every Tumblr is free to view, and Mark ran his as "a deepening well of resource for a bunch of the teeming masses that turn to Tumblr for eye candy or conversations every day." He filled a necessary role. With the decline of civic-minded governance (quick, name the last public fountain built near you), it's up to private creators to fill the void. If considered as a public service, MPD's curation might fall under the Fair-Use doctrine of copyright law.

The irony is that Tumblr itself is perhaps the only one making money from the platform, through sponsored links. Facebook is the same. Users share billions of photos per day, almost all with noncommercial intent. The only player making money is the platform itself, Facebook. Google is the same. It's the financial plan for most online services. So when Tumblr cracks down on a small-time noncommercial curator for oversharing, the irony is pretty rich.

The elephant in the room which I haven't yet mentioned are the large content owners, companies like Disney, Warner, Universal, Geffen, and just about any major corporation that owns creative works. These companies have a strong vest interest in preserving current copyright protections. As currently structured, copyright allows them to preserve, license, and milk creative products for money, often for years past their useful due date. These corporations helped script the law. They created DMCA to shield their market and they want it to remain in place. Tools like Tumblr (or Napster before it) scare the crap out of these companies, because they raise the possibility of sharing content outside the market. That's why they've done a very effective job lobbying for tough content protection. But when heavy-handed laws are applied to internet sharing, folks like MPD get squeezed.

This may sound cruel but MPD’s demise may be a good thing if it creates the test case for all these ideas to shake out. This issue affects all photographers online. I think we need to think hard about them, and especially the photographers with bright legal minds. As might be obvious I'm just winging it here throwing out ideas. Open to thoughts or suggestions.

(Update: About three minutes after I posted this, MPD was reinstated. I'm too tired to revise it now. Maybe later...)

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