I figured that if I didn’t talk about the dreadful “Otaez Series” dun dun duuuhhhhh on Action Alameda “News” that someone would accuse me of ignoring the topic. On the other hand, I hate to give prominence to something that is really a non-issue, but what made it an issue was the disproportionate reaction to it.
Let me back up for those that don’t actually read Action Alameda. But wait, I might need to back up a bit further than that. So back after the November election, on election night there was Victory Party at Otaez, honestly I don’t know who hosted the party, but it really is secondary to the story. At the party there were a lot of familiar faces present in the Alameda politics scene, it probably was the only party hosted at a public place as well. So at the party someone came with a camera and snapped candid and posed shots during the course of the event. That person posted the photos on her personal Facebook page. Someone — let’s just say that person probably didn’t vote for Marie Gilmore for Mayor since his father was running against her — downloaded the photos and posted them on a Facebook page he created and passed the link around to non-Marie Gilmore voters. The original owner — who had not given permission to the other person — marked the photos as “Private” and requested that the other person remove the photos, which he did.
Fast forward to last week when David Howard over at Action Alameda decided after “months of consideration” that he would post a curated selection of photos from the Facebook set and “let the public determine their significance, if any.” Given the readership of Action Alameda, naturally the “public” over there determined that there was great significance in the photos, including calling Marie Gilmore “immature” and “lacking a sense of self” because she dared to, gasp, have fun (shudder) at a Victory Party where she was trending to win the election against an evenly stacked field. *clutch the pearls!*
The presence at the event of key union officials led some posters to wonder if there were any firewalls between the City Council and negotiations with unions. Of course I have paraphrased it a lot nicer than the commenter. Of course that person should know that the City has a labor negotiator and an HR director to handle these issues and the the City Manager would oversee those negotiations as well. Of course these City Council members are not the first — nor will they be the last — elected officials that have received endorsements from union leaders so I imagine that the same firewalls are in place for these unions between the City Council as would have been in place had Frank Matarrese been elected Mayor and his endorsement from the union that represents non-public safety City Employees.
So what made this an issue was not the fact that they were posted or that they exist, but what gave the issue prominence was the reaction by the Firefighters Union. Because honestly, I wouldn’t even be interested in this topic had the Firefighters not contacted David Howard to take down the photos. Denise Lai over at “Raising Hell for Good” surmised that the Firefighters were “doing Marie Gilmore’s bidding” when someone reached out to David Howard at Action Alameda asking that he remove the photos. But the original owner of the photos is actually a…wait for it…wait for it…firefighter. So the more logical explanation is that much like the original owner requested that the person-who-did-not-vote-for-Marie-Gilmore-because-a-relative-was-running-for-Mayor-as-well remove the photos from his Facebook page, the original owner didn’t want her photos on Action Alameda either. Given that Domenick Weaver, the president of the Firefighters Union has a relationship with David Howard of Action Alameda perhaps he thought that a simple request would be sufficient, but apparently it devolved into what David Howard termed a “threat of legal action.”
So a few issues here with the photo set, first, this photo:
Which incorrectly identified Jon Spangler as being a part of the “city manager selection committee” I’m not sure who he was confused with, but very wrong nonetheless. Then there was this photo:
Which posted photos of these two kids, I actually created the blur on their faces because it’s pretty smarmy to post photos of kids without their parent’s permission and given that they have no relevance to the photo it’s just good ethics as a news person, even a “news” person, to do so.
And speaking of permission in general. What the fuss is more than likely about is over consent to post the photos in the first place. While David Howard is framing this as a “fair use” issue there is also the issue of ownership of the photos and how he received a copy of this. The question about whether photos on personal Facebook pages are fair game because they exist somewhere on the internet was actually answered here. The biggest issue is that of copyright, Action Alameda runs its “news” site actively with advertising and “sponsored links” (aka links people pay to have posted) and — while it’s unclear if any money is currently being made on the site — the issue is that they have, hypothetically, trampled on the original owner’s ability to sell the photos if there was some market value to them. Here is an except from this journalism professor on the issue of Facebook and permission:
Two issues come up in this scenario – one legal, one ethical. Legally, I see a huge copyright issue here. Whoever took that photo has a copyright in it, attaching the moment the photo button was pushed. It’s an original work of authorship in a fixed medium of expression. The copyright act couldn’t be clearer on this.
The question is, does it just become public domain by virtue of being posted on facebook? Of course not…
So, moving online, is that unfortunate photo of you in the sombrero from college tagged on someone else’s facebook account fair game for use by anyone – friend or otherwise – who can access it? Perhaps they could make a nice greeting card from it?
And I don’t think this qualifies as fair use either. A use for news purposes would meet the first threshold for review under fair use guidelines, but under the four-part balancing test applied by courts in looking at fair use, I don’t see how any one favors the republisher: The use is for-profit, the entire photo is used, it most likely is a significant element of the news story, and it harms the market for the original copyright owner by giving away for free what the owner could legally sell.
Onto the ethical ramifications here. While facebook users may not have any privacy rights guaranteed by the law, they do have reasonable belief that the service is to share their information with friends. As a journalist, would you have any ethical issues with rifling through the photo album of a citizen after he or she had been arrested or implicated in some huge news?
And he wraps up with:
In short, facebook photos aren’t posted with the intent of becoming public domain and usable for any purpose, news or otherwise. Journalists should know better. And for those who don’t, some day, the hammer will come down. I tell my students, “don’t let this be you.” I offer the same advice to journalists everywhere.
To sum up, the photos are no biggie, it ranks up there in the “who cares” territory. Like 85% of the photos on Facebook, it’s just sort of “meh.” Posting them without permission was sort of jerky and unethical without the permission from the original owner. Firefighters overreacted, hopefully cooler heads have prevailed and they have backed off. Action Alameda should remove them because they don’t belong to Action Alameda and Facebook is not BitTorrent. Although if the owner wants to take action, the owner could just follow the steps suggested in the article above (file a copyright on the photos then take Action Alameda to court — minimum statutory damages for copyright violation is $750 — or issue a takedown notice to his ISP under the Digital Millenium Copyright Act) which would be much more efficient if you ask me.
In other Firefighter related news, David Kapler (remember him?) has filed a wrongful termination lawsuit against the City and some of its officers including former City Manager Debra Kurita and former Interim City Manager Ann Marie Gallant. More on that tomorrow.