As a user I want the right to embed any publicly available work for purpose of commentary, as long as I'm doing it non-profit. Yes, if someone posts a public photo of their kid, I want to be able to embed it on my non-profit website (if I run ads, go ahead and sue me) to comment about that absolutely awesome/awful photo I've just found. Disabling embedding wholesale is throwing baby out with bathwater - it's hurting cultural development.
Also, there are many different kinds of uses, some commercial-y. Here are a few:
- Display on Twitter itself (retweet)
- Use in a news story, near an ad
- Display in a Twitter widget on a web site
- Embedded Instagram photos on a company gallery page
- Use in an email ad campaign
- Use on a billboard
The list of things above exist on spectrum of "commercial-ness", and reasonable people can disagree on which they think are OK and which aren't as far as obtaining advanced permission. What many would like to see are much more explicit rules or technical controls so that the ambiguities are removed.
Embed controls might not be ideal from a fair use perspective, but it's a lot better than the "let the courts figure out" situation we have now.
If you're not doing a fair use, then maybe you shouldn't have the right to embed so freely.
I don't see how a no-embed policy hurts anything.
If the network has an embedding feature, then we must assume that the network allows embedding of content that the network has the right to distribute. I'm quite surprised if Instagram has an embed feature, but says you need to ask permission to use it.
If you download the content and host it yourself, that is of course different and you need permission from either the user or the network.
http://www.jdsupra.com/legalnews/an-update-on-the-legal-impl...
http://www.buzzfeed.com/jwherrman/want-to-publish-a-twitter-... -
https://pando.com/2013/01/22/how-twitters-new-embeds-will-ma...
Clear as mud.
"You provide us a perpetual license to all of your works, as well as anyone else using your tweets, pokes, stories, etc."
With the current state of copyright law in the US, let me tell you how far that's going to fly in court.
Content is clearly owned by the user; why would someone get to use it anywhere off-platform without their permission?
http://www.guidethroughthelegaljungleblog.com/2014/07/copyri...
Hasn't been tested in court, though.
Three things that would be incredibly helpful in this area:
1) All these services should give users the ability to prevent embedding of their posts either globally or on a post by post basis. Drawing a very bright line like this makes what is and is not OK very clear. Off or on by default would be debatable.
2) Supply a UI or API for automatically obtaining licensing permission (requester goes to an Instagram post, clicks/taps "request license to use in/on {web, billboard, TV commercial, etc.}" which sends a message to the original poster, poster can than choose to consent/refuse, response is sent to the requester.
3) Make some public statements / legal guarantees (i.e., a promise to stand behind people who get sued even when using service-provided embedding tools) about what they consider acceptable usage.
Right now it's just very gray, and the safe route is to obtain advanced permission for anything with a photo, which I think goes against the frictionless spirit of the old web (i.e., just put up a link or excerpt a post and be done with it.) The service-provided embedding tools try to maintain that spirit in the more walled-gardeny world, but legal uncertainties still make that iffy. I wrote a bit more on this previously: https://medium.com/@sthware/user-generated-content-embedding...
I'm not sure what the legal reasoning would be for "hashtags as consent for photo usage", but something tells me that it probably wouldn't hold up in court if it came down to it.
Edit: another thing that needs discussion is things that seem innocent to many, but could be legally questionable. Prominent example: retweets. Let's say you embed a Twitter widget of your company's feed on your web site's product page. You retweet something someone has posted about your product. It then appears in the feed, on the web site, next to your products. Protected or not? Using some of the logic from Heigl vs Duane Reade, it might not be: https://social.ogilvy.com/celebrities-suing-brands-for-a-twe...