Congressman who wrote SOPA is a copyright violator

201201121024

See the background photo on the archived, pre-SOPA version of US Congressman Lamar Smith's website?

Jamie Lee Curtis Taete of Vice says:

I managed to track that picture back to DJ Schulte, the photographer who took it.

And whaddya know? Looks like someone forgot to credit him.

I contacted DJ, to find out if Lamar had asked permission to use the image and he told me that he had no record of Lamar, or anyone from his organization, requesting permission to use it: "I switched my images from traditional copyright protection to be protected under the Creative Commons license a few years ago, which simply states that they can use my images as long as they attribute the image to me and do not use it for commercial purposes.

"I do not see anywhere on the screen capture that you have provided that the image was attributed to the source (me). So my conclusion would be that Lamar Smith's organization did improperly use my image. So according to the SOPA bill, should it pass, maybe I could petition the court to take action against www.texansforlamarsmith.com."

The Author of SOPA Is a Copyright Violator

Mark Frauenfelder is the founder of Boing Boing and the editor-in-chief of MAKE and Cool Tools. Twitter: @frauenfelder. Come and hear Mark speak at the ALA conference in Chicago on July 1.

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Jer_00

Anyone got a link to the text? Because I might be willing to put down good money on a bet that Congress exempted themselves from anything related to SOPA in the text of the bill.
- Sagodjur
  
  Every bill passed by Congress has hidden text written in invisible ink that exempts anyone with a lot of money or influence from it.
- http://twitter.com/ThatAndromeda Andromeda Yelton
  
  You can always find a copy of the text of legislation at thomas.loc.ogv: http://thomas.loc.gov/cgi-bin/query/z?c112:H.R.3261:
IronEdithKidd

Please, oh please, DJ Schulte serve a DMCA take-down notice on Smith’s site.
- Andrew Singleton
  
  It would please the mutants here. Since even though it’ll likely get you nowhere fast you will have a paper trail you can point at as official record showing violate then showing that /any/ system of enforcement will be flouted by those that claim to fight for those blocks and chains for the rest of us.
- Thad Boyd
  
  And get his site delisted from DNS.
http://pulse.yahoo.com/_JG5AYMZ2NLPAERVKIS2SCIZDPQ Nothing Much

The law is for you and me. Not the people who write it.
Comedian

Not wanting to throw stones just yet I checked through the page source to see if there was a credit in the html. I have some CCA stock pictures up on flickr that get used quite a bit. I always check the page source, alt text, title and image name before deciding that someone hasn’t bothered to attribute the image to my flickr stream.

I searched

http://web.archive.org/web/20110724055845/http://www.texansforlamarsmith.com/

for sch, attrib, flick, common and dj, finding no instance of any of those strings.
- http://pulse.yahoo.com/_3PYS2RTWEAV3XRVAZZE5KWTM2U GaryT
  
  Interestingly, as of today at least, the Internet Archive is the only thing being blocked by http://www.texansforlamarsmith.com Apparently if you can’t be compliant, block anyone who might find out. Good example Mr. Lamar
  
  Here’s the entirety of the site’s robots.txt file:
  
  # See http://www.robotstxt.org/wc/norobots.html for documentation on how to use the robots.txt file
  #
  # To ban all spiders from the entire site uncomment the next two lines:
  # User-Agent: *
  # Disallow: /
  User-agent: ia_archiver
  Disallow: /
  
  ref: http://texansforlamarsmith.com/robots.txt
benher

The fourth branch of American government – the feudal lords are exempt from these rules.
ultranaut

An apocryphal quote attributed most commonly to Marx and Lenin:
“The capitalists will sell us the rope with which we will hang them”
EH

Lamar Smith was also a failed content creator before he went to law school.
JProffitt71

When, oh when, will we openly revolt? The ridiculous hypocrisy, the thundering corruption, the petty bullshit, it is too much. I am having a hard time even sleeping anymore: I have literally nearly nowhere to retreat to now. If our votes don’t change anything – if they even CAN change anything… I won’t be able to take another cycle of this.

I must pull myself away from this and find something, anything. I’m sorry if my outburst is unwarranted.
- Andrew Singleton
  
  Go support your local community. At least they’ll have to look you in the face while trying to cheat you.
  - SoItBegins
    
    You, sir, are a cynic.
    - http://www.davelog.com davelog
      
      Cynicism is just a fancy word for pattern recognition.
      - ChristopherHalbersma
        
        quote of the day.
Mujokan

It is not in the least “unwarranted”, if you mean by that a breach in etiquette. I’m sure we all know how you feel or we wouldn’t be here.

But clearly you’re feeling strong emotions and you “don’t know what to do with them”, so to speak.

Emotion is oftentimes just a prompt to action. It’s a primitive, subconscious impulse that can get things right and can get things wrong. Our amazing culture wouldn’t exist with out it, but it’s also a cause of immeasurable suffering, even among the most wealthy and powerful who are immune to most other causes of pain.

One of the specialties of emotion is found in the way it works with our moral instincts. Ideas of fairness and cheating are fundamental to being human, going back to the days before we left the trees for the savanna. But since then we’ve developed consciousness and formal logic, and we can quantify morality in a much clearer way.

To the extent that you can act in a practical way to right a wrong, you should do so — by definition. When action is blocked, you also have a moral obligation to free yourself from the pain caused by frustration, because you yourself count no less than anyone else in the moral calculus.

To the extent that you find emotion useful as a prompt to moral action, there’s not that much of a problem. But there is no moral value to useless cycles of negative thoughts that keep you in pain: quite the contrary. In fact you’re morally obliged to let them dissolve and to come back into the present reality you sense around you.
send maleto

According to the DMCA Act, under “Fair-use”, his Use would be considered as a fair-use folks.
- EvilSpirit
  
  First, you said “Act” twice. Second, it’d be more informative if you supported that assertion with … well, anything more than an assertion.
  - send maleto
    
    Thank you for pointing out the use of the word Act twice, that changes everything!
    Feel better?
- plus MEDIC
  
  No, it’s not.
  - send maleto
    
    It is according to the DMCA
    - mccrum
      
      I’m interested in hearing your definition of fair use under the DCMA. I’m also interested in hearing Mr. Smith’s commentary, criticism, news reporting, research, or teaching (typical fair use) regarding the background of his webpage.
      
      The DMCA actually states “Nothing in this section shall affect rights…to copyright infringement, including fair use, under this title.”
      
      So, the ball’s in your court. Make a claim: provide proof.
      - mccrum
        
        I’m asking you not to go around making false statements without having facts to back your statements up.
        
        Without facts, the statement “It is according to the DMCA” is just as true as “I’m not sure about my mom, but based on last night’s action in her room, your mom certainly thinks I’m special.”
      - mccrum
        
        You seem to be missing the point.
        
        Fine: “Based on last night’s action in his room, your dad thinks I’m special.”
        
        PS – Sorry to hear about your mother.
      - send maleto
        
        “I’m asking you not to go around making false statements without having facts to back your statements up.”
        
        People like me can cut and paste the exact text from the Copyright Office and people like you will desperately look for anything (even if it doesn’t exist) to prove that what is posted is wrong.
        
        There are a few things to consider even before entering a defense for fair-use.
        The amount of the original work involved is an important one; as is whether or not the Use was transformative in nature.
        If you look at the photo in question it is certainly not the focus of the new use, in fact very little of the original photo is even used.
        It may very well be my monitor, but from what I see, even the colors are different.
        
        I would think it highly unlikely that a judge would find the Use anything other than a fair-use.
        It doesn’t look like any profit was generated by the Use of the photo, and it doesn’t appear that other copies were used?
        It would be different if it was the original photo only, but that isn’t the case.
      - mccrum
        
        “People like me can cut and paste the exact text from the Copyright Office and people like you will desperately look for anything (even if it doesn’t exist) to prove that what is posted is wrong.”
        
        No, I’m actually actively interested in seeing the actual text because I would actually like to know if my understanding of fair use and copyright is correct. I’m not interested in proving you wrong, I’m interested in actually understanding the law so I can continue to actively defend the copyrights I hold (which is required by copyright law) without wasting my, and others’, time and money on litigation that will go nowhere.
        
        If DCMA means that someone can take a photo from me, and simply change the color temperature and call it theirs, I would be very interested in this.
        
        Profit by the end user is irrelevant to fair use and copyright law. If the copyright holder deserves compensation for use, that is what is relevant.
        
        Again, fair use is not simply being allowed to use copyrighted materials. Fair use is *sometimes* allowed in the cases of creating new transformative works (see Shepard Fairey and the AP) but when a guy is looking for simple credit for his image’s use, it doesn’t seem like a difficult thing to provide.
        
        Changing the color temperature, cropping, tilting, these are not derivative or transformative changes. If the background image was a a photo of a painting based on the original photograph, there is a case to be made for fair use. Simply copying it and using it as a background it not.
      - weldeng
        
        As for making profit, you could claim that he’s getting campaign contributions based on his support of SOPA.
      - mccrum
        
        What? Politicians don’t make a profit from government service! And they certainly wouldn’t take campaign donations to use as profit! That money goes directly to their hard working staff consisting of their immediate family.
- agthorn1981
  
  “I switched my images from traditional copyright protection to be protected under the Creative Commons license a few years ago, which simply states that they can use my images as long as they attribute the image to me and do not use it for commercial purposes.”
  
  Pretty sure Fair-use only applies to traditional copyright protections in the absence of a license, and the purpose of CC licenses is to make all use Fair-use provided certain minimum criteria are met. Given that the site didn’t attribute the image, and I see a big “Contribute Online” button in that screengrab, neither of the creator’s minimum criteria were met.
  - mccrum
    
    CC is actually sometimes a little looser than fair use. For fair use, I can copy a segment from a song to use in school, teaching a class. I can also use parts of it in a critique or when referring to it in the news.
    
    Creative Commons may allow me to remix and add to the song as I see fit, providing I meet the original author’s criteria.
  - send maleto
    
    Very little of the original Work was used.
    In fact unless you knew what the original photo looked like, it would be difficult to make the match.
    When I write term papers I use bits and pieces from other Works, I haven’t changed the Works so a credit would be required.
    - mccrum
      
      Term papers, I assume for educational purposes, are certainly covered under fair use. However, it sounds like you are providing the reader with an indication that you are using the material of others, with quotes or a footnote.
- Guest
  
  under the theory that the bill is a farce, I could agree with you.
  - send maleto
    
    Which Bill? The DMCA of 1998?
    - Guest
      
      Nice agenda you humorless…..
- traalfaz
  
  How is it fair use to copy an entire work (the photo) and use it without attribution? Especially since use in situations exactly like this (background images for websites) is an area for which a photographer might normally get paid for, even make a living that way.
  
  Fair use as I understand it involves using a small portion of a work for the purpose of example or parody, not to use the whole thing for free in a situation where you would normally expect the artist to be paid for the work, or to otherwise meet his conditions for use.
  - send maleto
    
    A very small amount of the original Work was used, and the new work looks nothing like the original.
    - Cefeida
      
      It still needs to be attributed, and was not.
      
      Additionally, if it’s used as a background, it doesn’t matter what portion is obscured by the website info- it’s still used in its entirety, and may be visible in its entirety depending on screen resolution, and may be loaded in a separate window by a savvy user. The whole thing is there, so you don’t even have the ‘small portion’ argument.
- A Nonny Moose
  
  [Citation Needed]
- Martin Liebermann
  
  You don’t understand fair use. A background picture embellishing a website simply isn’t. Please read and understand the rules of fair use before you claim bullshit.
  
  Also, author attribution is required for fair use, but not given here.
- http://twitter.com/sqlrob Rob
  
  And if SOPA passed, is this fair use?
  - http://twitter.com/spookiewon Pjay (Patti) Pender
    
    No. If SOPA became law not only could Lamar Smith’s entire site be effectively removed from the internet (by blacklisting it in DNS), BoingBoing in it’s entirety could be as well for the above link to the infringing site.
orwell

do as i say, not as i do…
Matthew Smith

Haha! the server crashed. is this ddos or are texans reallllllly for lamar smith today
Guest

Your resistance violates the spirit of the law
- Comedian
  
  Your spirit violates the law.
Cowicide

Let’s shut down everything on January 18th

http://blog.reddit.com/2012/01/stopped-they-must-be-on-this-all.html

Also Jon Stewart is got his debriefing… expect him:
http://www.cbsnews.com/8301-501465_162-57358082-501465/the-daily-show-host-jon-stewart-says-hell-brush-up-on-sopa/
- IronEdithKidd
  
  Can we reschedule for Jan. 23? Because that’s the first day Congress is back in session. A shut down on that day might reach a few congresscritter eyeballs.
  - Cowicide
    
    Sorry, it’s already set for 18th and everyone is joining in. Maybe another on the 23rd if the 18th doesn’t knock more people into shape?
zornwil

Well, the US is one of the few nations NOT recognizing Creative Commons, and if the photographer is forgoing his copyright and related protections, then SOPA may not even apply if it passes.

Regardless of the legalese, the essential hypocrisy is obvious.
- http://halfbakedmaker.org Robert Baruch
  
  What? CC is based in US Copyright law. CC means that you put your work under copyright (and in the US, your work is automatically under copyright), and then it details under what circumstances you will allow your work to be licensed. For example, CC-BY means that the work is automatically licensed to you as long as you attribute the work. If you do not attribute the work, then the work was not automatically licensed to you, and you are in violation of US Copyright law.
  
  Except, of course, in the case of fair use. Fair use is such a can of worms, that it’s better to just agree to the CC terms, since they are hardly onerous.
  - Guest
    
    If SOPA is a farce, this was fair use
    - http://halfbakedmaker.org Robert Baruch
      
      Not disputing that. Just disputing the “US does not recognize CC” comment which caused the enormous blinking holographic interrobang to appear over my head.
      - zornwil
        
        My point is not that the actual copyright rights, which are not forsaken through the CC license, are foregone. But my point is that the United States – last I knew and according to the creativecommons.org site itself a few years ago – was one of the few nations not recognizing the CC license itself. Yes of course your copyright rights are intact, I realize that’s the point. And the CC license MIGHT help you in court in the US – but most European nations and many nations around the world it WILL help you in court. That’s an important difference.
        
        Again, last I knew. I know the US administration has itself invoked the CCL, but I am not aware of test cases in US courts. I could not find an update on the Creative Commons site as to which nations have recognized it .
        
        I am not trying to say you are wrong. I am: a) clarifying my information; b) asking if you can please provide a reference that US law has begun to formally recognize such (either by Justice Department legal opinion or test case(s)). I have been searching the last 15 minutes and cannot find a contemporary citation. And my info does date back several years, as said (it may even have been under the 1.0 license days, when it first started; basically the list of countries served notice that your use of the CC would be respected in courts, and the US was the only holdout among Western developed nations).
      - http://halfbakedmaker.org Robert Baruch
        
        Well, there’s nothing specifically about US courts upholding or denying Creative Commons licenses. But there is a US Federal case upholding an open source license (holding that “violations of open source and public licenses are enforceable through copyright infringement claims”), so that’s good precedent for upholding similar licenses.
      - http://twitter.com/spookiewon Pjay (Patti) Pender
        
        “…which caused the enormous blinking holographic interrobang to appear over my head.”
        
        Wow! You have one of those too? Awesome!
el dueno

Law makers or law breakers, what’s the difference?

Anyway, I don’t think US Congressman Lamar Smith’s wrote the law, only introduced it. COOA (“Copyright Owners of America” probably wrote it as an attempt to monitize the web by scaring everyone else with lawsuits, etc.
Brian0505

Let me use words the politician will understand. I vote. I am a real voter in zip code 78749. You are currently my congressman. I am the growing majority. I hate that you wrote SOPA. I will vote you out. I don’t care if you are in violation of a law or not. You make me sick and you make the Internet sick.
http://www.taborcg.com/ McKinley H. Tabor

Like most people in Government these days, the Congressmen thinks he is above the law.. sue the bastard.
- danick
  
  i could be wrong but i think the guy who took the pic is an amateur photographer so the amount in damages wouldn’t make sense to sue for.
  and not to take a side on this one, but in all fairness the whole story isn’t known yet. maybe the webmaster really messed up? i did look around the net to find more of the guys pics, there really are all over the place and can be downloaded for free from most sites, with or without giving a citation.
  - Antinous / Moderator
    
    and not to take a side on this one, but in all fairness the whole story isn’t known yet. maybe the webmaster really messed up?
    
    Do you not get that this whole story is about laws that assume guilt without evidence?
    - danick
      
      What laws don’t I get that assumes guilt without evidence?
http://twitter.com/sqlrob Rob

Interesting. Apparently Robots.txt has been modified to disallow the archive.

Does that count as evidence tampering?
- danick
  
  what’s the archive?
  - http://twitter.com/sqlrob Rob
    
    Link from the original source:
    
    http://web.archive.org/web/20100819183728/http://www.texansforlamarsmith.com/
    - danick
      
      thanks rob