UPDATED: Shame On Thank You, Yahoo!

In what can only be described as a tool to incur repetative breaches of the Digital Millenium Copyright Act (DMCA), Yahoo (NASDAQ:YHOO) yesterday produced a tool that will purposefully strip out textual metadata, which includes copyright management information, ownership information, captions, and so forth, from images.

CNET reports (Yahoo web tool speeds up image shrinking, 10/6/08) on Smush It:

The operations Smush It can do include: convert GIF images to the PNG format; reduce the range of colours used in PNG files; strip out textual metadata from JPEG images.

If you're a lawyer representing photographers, you've got to be singing "Oh...happy day!"

(Continued after the Jump)

A read of the DMCA (THE DIGITAL MILLENNIUM COPYRIGHT ACT OF 1998, U.S. Copyright Office Summary, 12/98), page 6 lays out the problems this technology has:

Integrity of Copyright Management Information

New section 1202 is the provision implementing this obligation to protect the integrity of copyright management information (CMI). The scope of the protection The Digital Millennium Copyright Act of 1998 is set out in two separate paragraphs, the first dealing with false CMI and the second with removal or alteration of CMI. Subsection (a) prohibits the knowing provision or distribution of false CMI, if done with the intent to induce, enable, facilitate or conceal infringement. Subsection (b) bars the intentional removal or alteration of CMI without authority, as well as the dissemination of CMI or copies of works, knowing that the CMI has been removed or altered without authority.

It goes on to define CMI:

Subsection (c) defines CMI as identifying information about the work, the author, the copyright owner, and in certain cases, the performer, writer or director of the work, as well as the terms and conditions for use of the work, and such other information as the Register of Copyrights may prescribe by regulation. Information concerning users of works is explicitly excluded.

There can be little doubt that this well intentioned product, designed to speed downloads, will in fact, speed you into multiple DMCA violations.

In fact, checking Section 1201 of the DMCA:

Sec. 1201. Circumvention of copyright protection systems, subsection 3:

(b) ADDITIONAL VIOLATIONS- (1) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that--
`(A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;
`(B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; or
`(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof.
`(2) As used in this subsection--
`(A) to `circumvent protection afforded by a technological measure' means avoiding, bypassing, removing, deactivating, or otherwise impairing a technological measure; and
`(B) a technological measure `effectively protects a right of a copyright owner under this title' if the measure, in the ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title.

Thus, you need not even have registered your work, under the Digital Millenium Copyright Act, 17 U.S.C. §§ 1201 or §§ 1202, in order to be eligible to bring a civil (or criminal) suit. A great resource and FAQ on this: Chilling Effects.) In fact, it didn't take long for the US Department of Justice to indict a company for a "1201" violation (First Indictment Under Digital Millennium Copyright Act Returned Against Russian National, Company, in San Jose, California, 8/28/01):

The United States Attorney’s Office for the Northern District of California announced that Elcom Ltd [was] indicted today by a federal grand jury in San Jose, California on five counts of copyright violations... The DMCA requires that the government prove a defendant offered to the public, provided, or trafficked in technology that was primarily designed to circumvent copyright protections, or was marketed for use in circumventing copyright protections...According to the indictment, Elcom and Mr. Sklyarov are alleged to have conspired, for commercial advantage and private financial gain, to traffic in a technology that was primarily designed and produced for the purpose of circumventing, and was marketed by the defendants for use in circumventing, the Adobe Acrobat eBook Reader.

I surely expect that Yahoo's promotion of this tool, with the expressed purpose of removing textual metadata, will get their Exceptional Performance Team in a bit of hot water. Check this Yahoo Developer blog video, about 34 seconds in, to see item #3 - "strip JPEG meta" (note - the audio is useless, but the screen visual makes the point) is where the problem lies. They could easily make it strip all the metadata BUT the copyright and ownership information.

Here's my image from yesterday's blog entry showing the before and after of both the visual effects, as well as the textual metadata wiping. (click the image below to open in a new window full size)


We need not look for "bad actors" looking to strip ownership information from our images under the soon to die and yet will reappear next year Orphan Works Act - well meaning people are producing products that will orphan every image it processes - intentionally.

Yet one more reason why Orphan Works, as written, is horrible for everyone.
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Update: Check the comments below. It seems that the developers have been responsive to the issues raised, and have ensured the preservation of the metadata. Thank you, Yahoo!

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