The Dangers of Offloading Images

Filed as Features, Multimedia on February 4, 2008 11:56 am

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Previous on my site, I discussed the benefits of embedding images into your blog rather than hosting them yourself.

But while there are many reasons to embed your images, there are also reasons to think twice before doing so. Posting your images on a third party site, such as Flickr, PhotoBucket or Webshots provides you some protections, but also costs you some rights. By introducing a third party into the equation, you subject yourself to a whole new set of licensing terms, some of which may cost you dearly.

That’s why, before uploading your image or other media to your favorite hosting site, it is worthwhile to take a moment and understand what rights you are giving up and decide if it truly is worth it.

The Advantages

The argument in favor of embedding is fairly simple from a copyright standpoint. By offloading your images and media to a third party service, you guard yourself against false copyright notices.This is especially important if you post images that you didn’t create such as screenshots, logos or even Creative Commons images as other copyright holders, depending on their demeanor and opinion of your work, might be motivated to demand takedown of the work, no matter how “fair” your use likely is.

Should a copyright holder decide that your use is infringing and wish to file a takedown notice, they would be forced to file the notice with your image host, not with the host of your blog. Even if the image is taken offline, the rest of your site is safe. This gives you the chance to respond and seek legal council and formulate a response without the pressure of getting your site back online.

Though false or questionable DMCA notices are actually extremely rare, they are worth mitigating against if you post material that might attract such attention, especially if it might cross paths with a party known for filing such notices.

However, it is the bandwidth and space concerns that drive most bloggers to embed their images. Though most paid hosts provide enough space to easily host all of the images one could want to upload, free blog hosts and social networking sites have sharp restrictions on what you can upload and often place caps on bandwidth. In those cases, offloading images, especially larger ones, might not only allow you to expand your site, but also protect it against being closed due to overages.

However, all of this site protection comes at a pretty steep cost, you give up rights in your images. While not a large deal for some bloggers, others will be made very nervous by the rights they surrender when they hit “upload”.

Surrendering Rights

Whenever you upload your image to another service, you surrender certain rights to it. Some of these rights are necessary in order to display the image but some companies also claim a wide set of rights, many of which go beyond the intended scope of the arrangement.

For example, uploading an image to Webshots grants them, as well as their parent company and affiliates, a “nonexclusive, irrevocable, worldwide, sub licensable, royalty-free license to use, store, display, publish, transmit, transfer, distribute, reproduce, create derivative works of and publicly perform that Content on and through each of the services provided by Webshots.”

In short, by uploading your image to Webshots, they can do almost whatever they wish with your photo, license out their rights to other parties and there is no way terminate the agreement as the rights are irrevocable. Once you have uploaded an image to their service, they retain their rights in it, even if you close your account, and can pass those rights on to others.

Much of the time, these rights grabs are designed to simply protect the company and prevent them from having to relicense all of their old content should they get into a new line of business, such as mobile media, slideshows, etc. Webshots seems to be such a case as they go on to say that your images “will only be used by Webshots in the same way they have always been unless you give us permission to do something else with them.”

However, not all sites demand such rights from their users. Flickr, for example, limits their rights “solely for the purpose for which such content was submitted or made available” and allows users to exit the agreement simply by removing their works from the site.

But while Flickr certainly seems to be one of the fairest with its licensing, at least one company is not only claiming a wide range of rights, but exploiting those rights for profit in a means that many may never have intended.

PhotoBucket

On the surface, PhotoBucket’s terms of service seem pretty basic, claiming a standard set of rights and allowing you to exit the agreement by simply removing your works. However, buried in the third part is a sentence that says the following:

In addition, where you have made your User Content public, posted a link to your User Content on another website or otherwise shared a link to your User Content, you grant to Photobucket a nonexclusive, royalty-free, worldwide right to sublicense the right to copy, modify, prepare derivative works from, and distribute your User Content as necessary to perform the Services, including without limitation the printing services offered by Partner Sites.

What it means is that, if your account is not set to private and your images a publicly available, PhotoBucket has the right to sell prints of your images through their partnership with Qoop. Though Webshots and Flickr both partner with Qoop as well, they restrict printing to a user’s own images. With PhotoBucket, any visitor can print any publicly available image and neither PhotoBucket nor Qoop is obligated to pay you.

This raises a series of issues, both ethical and legal, and has become the subject of a petition by artists, which has gartered nearly 6,000 signatures as of this writing.

PhotoBucket responded to these issues saying that it is “committed to protecting and empowering content owners and creators” and that their site “offers features that give users the ability to set private and public settings for their photos and videos.”

However, PhotoBucket currently has no plans on changing the system and the only way to avoid having your images be available for printing is to set your account to private.

Being Safe

The safest route, in terms of your rights, is to simply not embed your images. However, that may not be practical and it could expose the rest of your site to unnecessary risk.

Instead, a better approach would likely be to keep your personal creations close to home while embedding anything that might be seen as a risk. Posting screenshots, logos (without claiming any relationship to the logo creator) and clipart are generally accepted practices on the Web but could expose you to copyright or trademark risk from an overzealous rightsholder.

In those cases, posting works to an image sharing site are no great loss as you don’t hold many, if any, rights in the work and are only using them under fair use or a Creative Commons License. However, if you do so be certain that the images are not publicly searchable if it all possible. Using a service such as AllYouCanUpload ensures that only your use of the image, on your site, can be seen.

However, if embedding your own work is unavoidable or still preferred, there are a few things you can do to minimize the rights you give up. Specifically, you can read the terms of service carefully and look for the following things:

  1. What rights are you surrendering?
  2. Are those rights transferrable or sub-licenseable?
  3. How do you exit the agreement?
  4. What kind of warning is offered before the terms change?
  5. How are disagreements handled? Is there forced arbitration?

If you look through the terms of service, understand what your rights are and shop around for the host that demands the least of you, you should be at least doing better than most who simply click right past the terms and skip straight to the fun part.

Conclusions

When it comes to clicking past the terms of service, I am as bad as anyone. The terms of service at most sites are written by attorneys for the sole purpose of holding up in court. They were never intended to be easy to read and the mere thought of sitting through one makes just about anyone’s eyes glazer over.

However, those terms contain more than just a set of guidelines that you, as a user, must follow in order to use the service. Rather, it also contains a list of rights that you surrender when uploading your work or using the site.

Though there is nothing fun about reading a terms of service, understanding the rights you surrender is critical not just to protect your rights in your works, but also to protect your readers and others from using a bad service unaware of the potential risk.

All totaled, the actual risk of abuse from an excessive terms of service is very low, but given the nature of some of the terms of service, that risk can last for as long as the work is protected by copyright and can include rights that photographers and artists would like to reserve exclusively for themselves so they can profit from their work.

Given the nature of the risk, even if it is a rare one, it is worth addressing, especially since it only takes a few minutes to read a terms of service.

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  1. By Anand posted on February 4, 2008 at 12:06 pm
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    What I normally do(this includes even the image of my site logo, etc..) is host the images on one of my unused blogger blog and refer to that image URL. I don’t publish these images on the blog, but simply host them and then use it on my website.

    Could you comment if this is a perfect way to stop losing my rights while also saving myself from hosting costs?

    Reply

  2. By Jonathan Bailey posted on February 4, 2008 at 12:18 pm
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    Anand: It is an interesting method and it could be very good, but it would be better if you used a second paid hosting account, such as a throwaway GoDaddy account, to host the images. The reason is that I don’t know what rights Blogger makes you surrender in images you upload there.

    Also, if your use of the images violates Blogspot’s TOS, your account could be disabled and your images would stop working completely.

    If you’d like, I can wade through Blogger’s TOS and see if I find anything. I won’t be able to do it Wednesday as it is Mardi Gras here in New Orleans, but I can definitely give it a look if you’d like!

    Reply

  3. By Anand posted on February 4, 2008 at 12:35 pm
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    Thanks Jonathan. I had taken it for granted that a blog on Blogger is all mine. I just guess I should have a second look at the TOS lest all my images disappear one fine day..

    Reply

  4. By james posted on February 4, 2008 at 4:38 pm
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    Hmm – I’d rather pay for the bandwidth and keep lots of my low rez personal travel and life photos on my own site rather than another

    Reply

  5. By Barbara Day posted on February 4, 2008 at 4:47 pm
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    Thanks for the useful description of online photo sharing and rights management. Will definitely direct clients to this post!

    Reply

  6. By Jonathan Bailey posted on February 4, 2008 at 11:17 pm
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    Anand: Welcome. I took a quick glance at the TOS and it seems more fair. It limits their rights to your work to “the purpose of displaying and distributing Google services” so that is at least somewhat reasonable.

    I don’t see anything about termination, but given the statement above, it would seem to end when you remove your works from the site.

    James: Makes sense to me. It’s probably the best strategy if you took the images.

    Barbara: Very welcome for the help! Please let me know if you have any questions!

    Reply

  7. By justine mei a. cruz posted on February 5, 2008 at 3:53 am
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    Hi! I am a college student and I’ve just read your article. I didn’t know that there is such thing as fair use. :) I just want to ask if there are any punishments if I don’t follow the guidelines in fair use and if there’s any, what are these??
    Thanks and may God Bless you!!(:

    Reply

  8. By Jennifer dapon posted on February 5, 2008 at 3:58 am
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    I am Jennifer Dapon and I have read about your article I would like to ask, “Is fair use a law? Are there any penalties once you violated it?”

    Reply

  9. By gideon posted on February 5, 2008 at 4:08 am
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    ->im a college student.i would like to ask a question.Cutting and pasting a passage from an online article is a fair use violation. I like to know your opinion,and why?.

    Reply

  10. By Reina Grace Maramba posted on February 5, 2008 at 4:12 am
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    What if you copied an article and you change the other thoughts of that article,is it okay to do that kind of copying and reconstructing some of the content?

    Reply

  11. By christine,elmer,arturo posted on February 5, 2008 at 4:21 am
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    What can be the limitation upon using a copyrighted material?

    Reply

  12. By Ashish Mohta posted on February 5, 2008 at 9:08 am
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    Its always good to pay for it rather and keep thing s to yourself.

    There are issues even in case they ban your account for high usage you will loose evrything. I dont they they would give you back the images to yourself.

    I had been using the PB account but Now I am slowly moving it back to my host. Its better to be safe

    Reply

  13. By Sipifi posted on February 5, 2008 at 11:52 am
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    Def worth the read. I’m putting a link this way.

    Reply

  14. By Jonathan Bailey posted on February 6, 2008 at 10:28 am
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    Justine & Jennifer: If you use someone’s copyright material and it is not considered a fair use, then it is a copyright infringement and you could be held liable for damages. If the damages are severe enough, it could even be a criminal case. Your best approach is to always ask for permission before using a work and only rely on fair use if you must.

    Gideon: That depends on the passage, the length of it and the way that you are using it. There are many variables upon which fair use relies. Most likely it would be fair use so long as you only took a small portion, attributed correctly and added your own commentary, criticism or other work around it.

    Christine: See answers above. They should give you what you need.

    Sipifi: Glad you liked the article!

    Reply

  15. By Janssen posted on February 7, 2008 at 10:24 am
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    SteadyOffload.com provides an innovative, subtle and convenient way to offload images. The whole mechanism there is quite different from ordinary photosharing sites. Instead of permanently uploading your images to another host, their cachebot crawls your site and mirrors the content in a temporary cache on their servers. All you have to do is include a little piece of 1K JavaScript in the head of HTML pages. The image remains stored on your server while it is being delivered from the SteadyOffload cache. The URL of the cached image on their server is very scrambled and is changing often, so you don’t have to worry about hotlinking or copyright issues.

    It’s definitely worth trying because it’s not a photosharing site like Flickr or Photobucket but exactly a service for offloading static content.

    Reply

  16. By Jonathan Bailey posted on February 7, 2008 at 2:07 pm
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    Jansseen: An interesting idea and one I was not familiar with. I worry some though because I don’t see any mention of price other than the free trial. Do you know how much it costs?

    Reply

  17. By Janssen posted on February 8, 2008 at 2:16 am
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    Only outgoing transfer is what subscribers pay. For smaller amounts of bandwidth they charge something between $0.3 and $0.4 per GB. Yet for bigger amounts it comes around less than $0.2 per GB. I could read from their site that they provide individual discounts too.

    Since it seems like a startup and is located still only in Europe, I tend to think that they will lower the costs gradually.

    Reply

  18. By cbercarl posted on February 5, 2009 at 9:23 pm
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    I have just read this very interesting article which I thank you for.

    I was wondering if sites like Flickr would be a good place to upload all my personal photos from IPhoto as a form of backup and an easy way to share with friends. Just a thought!

    Anyhow I have not had time to read all posts here so apologies if it has been mentioned already, but do you realize that AllYouCanUpload is not accepting anymore uploads and funny enough it redirects to Webshots which I was put off by after reading this article.

    They must be making a lot of money out of people. It’s not often you get something for nothing in this world!

    Reply

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