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14 minute read

December 9, 2022, 12:56 PM

Lately, a lot of the DMCA takedown notices that I’ve filed have been for “nostalgia” pages on Facebook.  In other words, those pages where people find photos around the Internet of stuff from a given period and then repost them with no permission, no attribution, or anything else.  I don’t typically frequent these types of pages myself, but others who are familiar with my work will usually let me know when they spot one of my photos being used in an unauthorized manner.  When I’m notified, I will go in and locate it, and then I’ll get all of my ducks in a row before I complete the DMCA form and submit it.  And then, unsurprisingly, the people who get nailed get a little salty about it, while never considering for a moment that they may have had a lapse in judgment somewhere.

Two recent instances of this stand out in my mind.  The first was for a nostalgia group that focused on the 2000s.  In that case, I found a number of photos from my Journal entry about the 2005 remodel of the Walmart in Lexington, Virginia.  For that, I had to submit multiple takedown notices in order to cover the various photos that were included, but I got it done.  Two days later, I received confirmation from Facebook that the photos were removed.  A few hours later, I heard back from the infringer, a woman named Darla Griffin, who was clearly unhappy about the situation that they now found themselves in.  Like many infringers, they wrote me to complain, while attempting to verbally lick their own wounds after they got caught.

This was the first message:

I posted a post on Facebook three months ago about Walmart and one of the images in the post was taken down because it was wrongfully mistaken for copyright infringement when I actually downloaded the image directly from Google along with all the other ones in the post.  I did not steal the image at all from anyone and I would like for it to be included back on the post so my Facebook suspension can be lifted and I do not want my Facebook profile being disabled.

Then I got a second message about fifteen minutes later:

I posted a post on Facebook three months ago about Walmart and one of the images in the post was taken down for copyright infringement when I actually downloaded the image from Google like I do all my other images.  I did not steal at all from anyone and would like for the image to be included back on the post so that way my Facebook suspension can be lifted and my account does not get disabled.  I did nothing wrong.

My report number: 871006620565089

First of all, it would appear that Facebook is now suspending accounts, colloquially known as “Facebook jail”, over copyright infringements.  While I take great issue with the way that Facebook suspends and/or restricts accounts in response to alleged violations of their community standards, the use of Facebook jail for copyright infringement seems more reasonable, since that is an actual legal issue.  If people are going to violate copyright, use their access to their account as collateral to ensure that they don’t do it again.  However, I was not about to let Griffin’s insistence that she did nothing wrong go unaddressed.  So I responded:

Having received your two messages, first of all, let me set the record straight: you absolutely did commit copyright infringement, i.e. you definitely stole the image.  This is about as clear-cut as you can get, as you used images that you did not create without (A) verifying the copyright status of said images, and (B) ascertaining the permission of the copyright holder – me, in this case – before republishing the images.  As a general rule of thumb, just because you found something on the Internet does not automatically mean that it is public domain or otherwise available for anyone to use for any purpose.

That said, it sounds like you earned whatever penalty Facebook assessed on you.  If your account was suspended or otherwise disabled based on my copyright report, then that tells me that this was not your first rodeo when it comes to copyright infringement.  In other words, you were likely caught infringing copyright on more than one occasion in the past, and Facebook finally determined that enough was enough.

Therefore, I am not inclined to help you with this matter in any way, because you made your bed, and it seems that now, you are a bit salty that you have to lie in it.  But that’s ultimately your problem, not mine.

Have a good day.

That was the end of it as far as I was concerned.  I had said my piece, and there was nothing else for me to say, since I was unwilling to play.  If Griffin ended up in “Facebook jail” over copyright infringement, I can’t say that she didn’t bring it on herself.  Meanwhile, the response that I got told me that no one had learned a thing from this interaction:

But Facebook told me to contact you about it and I DID NOT steal the images and they came directly from Google is what I’m saying.  They didn’t come from anywhere but Google and you have to believe me.  I want to be able to post again on Facebook and don’t want my account disabled for something I didn’t do wrong.

She also sent me this thorough Instagram:

Hey, I know what you did and honestly I didn’t even know the image belonged to you at all.  I just simply used it to make a post about Walmart on Facebook and didn’t even know it came with copyright issues.   If I would’ve known all this I would’ve never used the image to begin with.  I never steal from anybody and especially not images directly from someone.  Everyone uses images on Google to make posts on Facebook and somehow when I do it it’s stealing?  That’s crazy because I use images on Google every so often to make posts on Facebook and have never gotten any negative feedback until now about “copyright infringement.”  I strongly apologize for what I did but I really need you to discuss this with Facebook so they can put the image back up which I didn’t even steal in the first place, just simply used it temporarily.

I feel like Griffin is using the same sort of defense that Marilyn Armstrong used when I nailed her two years ago for a photo of the Howard Johnson’s on Afton Mountain.  In Armstrong’s case, she stated exactly what she did, which was exactly what I was accusing her of, and then more or less said that she was innocent because it allegedly wasn’t stealing.  Sure, call it whatever you want if that makes you feel better.  In any event, a little birdie later told Armstrong about the first Journal entry, and she then doubled down in another long-winded response.  She clearly learned nothing, and it will only be a matter of time before she gets nailed again by someone else.  Griffin gave me the same argument, though in a far less long-winded manner than I got with Armstrong.  Basically, she claimed innocence, and then blamed Google Images for serving up the photos, despite the little warning on Google’s image search function that says, “Images may be subject to copyright.”  I have no reason not to believe her when she said that she found the images via Google’s image search function.  But that does not absolve her or anyone else of the responsibility of ensuring that the proper clearances have been secured before running them, or ensuring that it is likely to fall under fair use.  If you neglect to do this and end up in Facebook jail because of it, sorry – nothing I can do for you about it.

That message that Griffin sent was met with silence, since I had said everything that I needed to say before.  However, Griffin sent one more correspondence that told me that she was coming to terms with that she did something wrong, but still nonetheless is proclaiming innocence despite that it was a very clear-cut case of copyright infringement:

Hey I know what you did and honestly I didn’t even know the image belonged to you at all.  I just simply used it to make a post about Walmart on Facebook and didn’t even know it came with copyright issues.  If I would’ve known all this I would’ve never used the image to begin with.  I never steal from anybody and especially not images directly from someone.  Everyone uses images on Google to make posts on Facebook and somehow when I do it it’s stealing?  That’s crazy because I use images on Google every so often to make posts on Facebook and have never gotten any negative feedback until now about “copyright infringement.”  I strongly apologize for what I did but I really need you to discuss this with Facebook so they can put the image back up which I didn’t even steal in the first place, just simply used it temporarily.

In other words, Griffin now recognizes that she made a mistake, and knows how she could have prevented it, but at the same time refuses to admit that she was wrong.  In other words, the classic non-apology that goes, “I’m sorry, but here’s why I’m right.”  It’s funny the way that she cites all of the many instances where she violated copyright and did not get caught as reason why copyright infringement is somehow acceptable.  Just because one party either doesn’t know that they’re being infringed upon or turns a blind eye to it doesn’t mean that the next party will be unaware or be so understanding.

Considering the response, though, I would not be surprised if Griffin gets caught again violating copyright.  I’ve already caught other posters in the same group violating copyright, and taking a look through that group, I could probably count the number of pieces of actual original content on my hands.  So I suspect that it’s just a matter of time before Facebook pulls the plug on that group, as they usually do when a group receives too many copyright infringement claims.  On that note, when I was looking at the group, a passage in the group’s description caught my attention.  It read, “This is our last and final time starting over and it’s permanent so please trust us on this because we really mean it.  Please be sure to read the rules.”  Considering that the group’s submissions consist almost entirely of pinched content of one type or another, had previous incarnations of this group been shut down for too many copyright infringements?  I kind of want to know, though I suspect that I will never find out.

In any case, this attitude towards copyright is not just limited to Griffin and her page by any means.  I also found a page called “Childhood Nostalgia” that was doing the same thing.  I ran across a post there about Safeway, which featured a composite image of three Safeway locations.  The first was my photo of the old Marina-style Safeway in Wheaton, Maryland that I took about a week after it had closed, and then the other two were of some other locations that weren’t my work.  I wasn’t concerned about the other two, just so long as their presence on the same image didn’t impede my getting my part of it addressed.  Much to my delight, Facebook zapped it on the first shot.

For those not familiar, Facebook has this annoying tendency to balk at processing a DMCA takedown notice when my work shares an image with other photos.  They will then send me a message saying, “Thanks for contacting us.  It looks like you’re attempting to report content that you believe infringes your copyright.  To review your report further, we’ll need you to provide the following: An explanation of how you believe the reported content is infringing your copyright.  Once we’ve received this additional information, we’ll continue to look into your report.  Thanks, Facebook.”  This is after I’ve already given them a very detailed explanation of exactly what the infringement is in the original request, so clearly, they’re not paying attention when they’re processing my request.  I then have to talk to them like a child, and that response usually goes like, “This is a copyrighted photograph that I took myself.  This photo is being used in its entirety without permission from the copyright holder, i.e. me.  Please explain to me exactly what else is still unclear to you.  Otherwise, I expect this copyright claim to be processed in a timely manner.”  At that point, they will usually comply, but if they continue to balk, I will just submit another takedown request, and will keep on sending them until I get the result that I want.

Regardless of that, though, Facebook took the photo down, and so as far as I was concerned, the problem was solved.  The unauthorized usage was gone, and so I was good to go.  However, when I checked my email, along with the notification from Facebook that they had taken care of the problem was an email that was sent a little more than an hour later from Jesús Romero, who operated the Childhood Nostalgia page.  He was clearly not happy with me for beaning him over copyright infringement:

Hello Ben!

It’s an absolute pleasure getting in contact with you regardless of the situation!  I understand you are doing your job!  My name is Jesús Eduardo Romero and I created the page Childhood Nostalgia to share post that can trigger nostalgia to people younger, same age and/or older than myself.  I am a little intrigued on the matter of my post being flagged for copyright violation.  The photo happens to be a collage of the first two pictures being saved off Google Image Search engine and the last picture (way at the button [sic]) happens to be my hometown’s Safeway located at 90 East 5th Street, Douglas, Arizona 85607!  My apologies if my post violated copyright.  If your expertise suggests that it is indeed copyright infringed, I totally understand and the image can be deleted permanently off Facebook!  In the contrary, I would love to get the full access back to my page because I cannot afford to be radio silent for 29 days being that my most recent post has 218,490 impressions.  Hope you have a wonderful and blessed day, and I hope to hear from you soon!

I saw this email when I woke up on Sunday morning, and I had to go to work later that day, so I sat on it for a bit, thinking about how I wanted to respond to this – if I wanted to respond to it at all.  My first reaction was to just let it go unanswered, because I couldn’t think of anything to say that wouldn’t just plain insult the guy.  I got a second email from Romero a day or so later that largely restated the original message but updated the impression count to 310,312 (congratulations, I guess?) and also mentioned that he had a goal of reaching a million people by the end of the month, but that it’s become “a little difficult” to reach that goal while in Facebook jail.  I really don’t give a rat’s patootie about someone’s impressions or follower count.  For what it’s worth, there was one time that I filed a DMCA notice on Twitter that led to an account with over 100,000 followers’ being briefly suspended for copyright violations, which led to a lot of angry tweets’ being directed my way.  Thing is, if you infringe on my copyrights, I don’t care how many followers you have.  You are the same as anybody else, and don’t get a free pass just because you’re a “big” account.

Two days after receiving the original message, after some quality time in a train cab to think it all over, I wrote a response to Romero in the morning before going to work.  This was to be a teachable moment, but I also wasn’t going to coddle him:

It would appear that you fell into a common trap, that just because something is available on the Internet, people think that they can use it for whatever they want.  Your “Childhood Nostalgia” page seems to be full of content that you did not create (and, more concerningly, you slapped your own name and/or logo on them), which makes me think that you have a relatively loose grasp on the ins and outs of copyright.  Give this page a read when you have a moment:

https://www.templetons.com/brad/copymyths.html

In the case of the image that was reported to Facebook, the top one-third of the image was this image, showing the closed Marina-style Safeway grocery store in Wheaton, Maryland:

https://www.flickr.com/photos/schuminweb/10499151925/

That image is made available under the Creative Commons Attribution-ShareAlike license, and as such, it requires a credit to the person who created the image (i.e. me), and it also requires that the resulting derivative work be made available under the same license as the original.  You did not do this, therefore this is copyright infringement.  Additionally, since your final image included a second image from a third party, you likely did not have the legal ability to release the resulting derivative work under the same license as the original at all, unless you also received consent from the person who holds the copyright for the middle image, unless they licensed the work in the same way as I did mine.  If the bottom image is your own work, which you suggest that it might be, what you do with it is your business.

Therefore, this is absolutely copyright infringement that we’re dealing with.  As far as “The image can be deleted permanently off Facebook” goes, that is what the DMCA takedown process seeks to do: I, as the copyright holder, report to Facebook that my work is being used in violation of copyright, they process the request, and remove it from their service.  You do not factor into that process at all, because the assumption here is that if you knew better, you wouldn’t have infringed in the first place.  Therefore, since you clearly were unwilling to respect copyright, the grownups are removing it for you and letting you know what was done and why it was done.

That said, if your personal account or your page has ended up in “Facebook jail” over this, I can’t bring myself to feel badly for you.  I can only assume that if adverse actions are taken against your account, that this is not the first time that you have been caught violating copyright, and my own takedown notice is what put you past whatever threshold that Facebook has for copyright infringements.  In other words, you made your own bed, and now you must lie in it.  If you don’t like the situation that you now find yourself in, you only have yourself to blame for it.  In the case of my image, if you had followed the terms of the license, we would have had no problems.  Likewise, if you had contacted me ahead of time to negotiate alternative arrangements, all would have been well.  Since you failed at doing either of those two things, you find yourself where you do, and if that means a month of radio silence, then so be it.

It has been an absolute pleasure talking to you as well, and hopefully you have learned a few important lessons about copyright.  That said, though, I’m not helping you out of your situation, because I am treating you like an adult, and adults take responsibility for their actions – and you absolutely earned whatever consequences resulted from my report.

Yes, I came down pretty hard on him, and yes, it definitely came off as condescending in a few places.  However, I could not let certain points go unaddressed, such as confirming to him that yes, he absolutely committed copyright infringement, and also letting him know exactly what I thought about his cavalier attitude about copyright infringement, and about his request that I help bail him out of his term in Facebook jail for the sake of his impression count.  I’m particularly proud of the way that I addressed his “deleted permanently” remark, explaining that he messed up, and that the grownups have fixed it for him without his direct involvement.  Then in the last paragraph, I was straight up mocking him when I said, “It has been an absolute pleasure talking to you as well.”  If you’re trying to determine what I really meant by that, that sentence could easily be swapped for a common English colloquialism that starts with the letter “F” and ends with the word “you” and there would be no loss in meaning.

And by the way, if you haven’t read that “10 Big Myths about copyright explained” article that I linked in my reply, you should give it a read, because it’s very informative.

Meanwhile, Romero also blocked me from his Childhood Nostalgia page, which meant that I could no longer see anything on that page.  That’s not the first time that something like that has happened, though.  The late Matt Hilburn, i.e. the guy who ran various social media pages under the brand “Unsuck DC Metro” until his death earlier this year, blocked me on his Twitter page after I nailed him there for copyright infringement.  I find that tactic of blocking someone who has caught you engaging in wrongdoing to be a bit immature, since it tells me, in both Romero’s and Hilburn’s case, that they think that they are above such matters, and that attempting to cut off access to the page by blocking the complainant will make the problem go away.  Oh, how wrong they are.  I have alternate accounts on many of the various social media services for exactly this purpose, in order to ensure my continued access should someone decide to pull that sort of move.

So I fired up my alt account and saw that Romero had posted this on his page:

Note that he considers Facebook jail to be “technical difficulties”, and that he has decided that the copyright claim was “wrongful”.  Seeing that, I decided, “You know, I’ll bite.”  I wasn’t about to reveal my alt account by commenting on that, but Elyse was perfectly content to help me out.  So she commented with a question, and he took the bait:

Yep… I figured as much.  He learned absolutely nothing from our interaction, and will likely continue to violate copyright over and over again, stealing content and republishing it in the name of “nostalgia”, and watermarking the stolen images with his own brand.  Note that he characterized me as a “Karen” and cited that the copyright infringement claim made no sense because his page wasn’t making any money.  Clearly, he didn’t read the article that I sent him, because myth #2 on that page was, “If I don’t charge for it, it’s not a violation,” and the article then thoroughly debunks that notion.  Also, rest assured that if I thought that his page was monetized, he wouldn’t have heard from me at all, because I would have handled it through Pixsy.  If I’m filing a DMCA takedown notice, consider yourself very lucky, because that means that I have already determined that there is no money to be made from that usage.

I guess that in the end, the usual lesson applies: verify that you are clear to use materials that you did not create before you use them.  In my case, I will usually give permission for use, and will also help you out with whatever other needs you might have regarding your use.  If you aren’t complying with the rules, however, I am not so accommodating.  So do it right the first time, and stay out of Facebook jail.

Categories: Copyright infringement, Social media