Thursday, July 31, 2008

Microsoft In Deep

In an effort to promote it's image search engine, Live Search, Microsoft has hired Thin Martian, a British web design firm, to run it's Iconic Britain photo 'contest.' The buzz was big and bold, attracting Nikon as a major sponsor and prize provider, and reeling in actors Brian Blessed and Joanna Lumley as well as a Nikon rep and a media mogul as judges. The 'contest' is now in the first judging stage, culling entries down to 500 before the final 100 Iconic Britain photos are revealed.

Except the photographers may be unaware that they have entered the contest.

Using Live Search, 'entrants' are asked to look for images representative of Britain. Phone boxes, Stonehenge, steak and kidney pies, bad teeth, that sort of thing. Then, when they find one they feel best represents Britain, they are instructed to submit it to IB, where, if they are lucky, they may win a Nikon Coolpix camera, or even a Nikon DSLR! And that's where the whole thing spirals into a fiery crash.

I was made aware of this contest at the last minute, before it closed, entered my name, 'M Styborski' and there were six of my photos, six of my copyrighted photos, from Flickr. Needless to say, I was dumbfounded. I have never visited Britain. The returned photos are rather odd for a Brit-centric contest as well. A local DJ, a local bartender, one of the Holy Cross Steamboat houses, A dirt road in Rodney, Mississippi and two shots of Bobby Jindal.

In response to claims of copyright infringement, Microsoft has stated that all images returned through Live Search are in the Public Domain, however look through some Flickr groups and you will find that this is not the case. All of my images are explicitly marked "© 'respective year' M Styborski, All rights reserved." Yet they show up as eligible for the contest. Not only that, but the Banner on my Flickr profile, created by Big Huge Labs specifically for display only on my profile page shows up. It is not my property, it belongs to BHL.

Further insulting is the fact that some cockney git, (and I use that as a term of endearment,) can submit one of my copyrighted works to a contest in which I am not allowed to participate in, even if I was inclined to do so. And win a nice camera. He gets a prize, Microsoft gets page hits and contact info and I get nothing. Nowhere in the rules does it say anything about compensation for the image owner, or copyright holder, but in subsequent correspondence from Microsoft's legal representative, I have been assured that they will arrange licensing rights to any copyrighted materials chosen.

Of course, they also claim that any copyrighted image which the owner does not wish to be included in the contest will be removed from the voting as long as the owner contacts them and sends a Notice of Infringement. What this boils down to is that once the final 100 Iconic Britain shots are chose, Microsoft will contact the copyright holders, (of which there should be none since all images are supposed to be in the public domain,) but if the owners do not want their images used, they will be removed and replacement images chosen. So essentially the final winners will actually be a lot of second and third choices, meaning the contest itself is moot.

As to the many people out there who seem to think that people like me are worried for no reason, (the ones who say, "It's a search engine, if you don't want people looking at your photos, don't post them on the web,") It's not a search engine. The original site had two search boxes; one which returned images with copyright and EXIF data attached and linkbacks to the original host site, and the "Submit" search which retured only images, stripped of EXIF and linkbacks and renamed by another party.

I have no problem with search engines; that's how people find me. But the minute the search engine returns an image that does not credit me, it's a violation of the law, and without a linkback, it violates Flickrs API agreements. Essentially they are using my work to promote their brand without compensation. That is theft, and I will not stand idly by while another of my human rights disappears.

The following is my correspondence to date with JK Weston, Microsoft's lead copyright lawyer:

I have recently found out that some of my copyrighted work has appeared on your Iconic Britain contest website. This amazes me because I have never taken a photo in Britain, much less visited. I understand that Microsoft swears all photos returned in the submission search are in the public domain, but this is not the case. Enclosed, please find a screenshot of the works in question. The Escher print is not mine, but the rest are from my Flickr site. Please contact me at your earliest convenience regarding the immediate deletion of my work from your host servers. thank you for your prompt attention to this matter.

M Styborski

Weston's reply:

Dear Mr./Ms. Styborski,

Thank you for your correspondence in relation to this matter.

At Microsoft we take copyright very seriously and endeavour to provide all users of our products with guidance on respecting copyright. However you have informed us that you object to certain of your images being submitted by users and displayed through the competition mechanism and that you do not wish these images to be included in the competition. We appreciate the fact that you have informed us of this situation and want you to be reassured that we will take steps to ensure that each image you have reported to us will not be used again within the competition.

The initial stage of the Iconic Britain competition, in which users submit entries, closes at 1pm on Thursday 31st July, after which we will be compiling all submissions ready for voting prior to the Final 100 reveal on Thursday 14th August. Naturally, we will exclude those images you have notified to us from this voting. Microsoft will obtain the consent of the copyright owner in relation to all images that will be featured on during the Voting and Reveal stages of the competition.

J.K. Weston
Legal and Corporate Affairs
Microsoft Corporation USA

I love the skillful way Mr Weston's form letter completely misses the point. My response:

Perhaps I did not make myself clear. My photos have nothing to do with Britain and I did not expect them to be voted on at all. This is not my concern. While I appreciate the form letter, I have read it before from other photographers whose copyright images have been misused by Microsoft's Iconic Britain contest. At the risk of being repetitious, I again ask that you contact me regarding the deletion of my work from your servers. The filenames do not match those on my Flickr site, which leads me to conclude that the works in question have been downloaded and are being illegally hosted by Microsoft and Iconic Britain. If indeed, Microsoft is not responsible for the hosting, I request that you send me the addresses of the sites which your Live Search engine found my works so I can have them removed from those sites. I know for a fact that one image came directly from my Flickr site, as it is a banner from my Flickr profile, created by Big Huge Labs expressly for my use and it has never been posted anywhere else on the internet.

The fact that Live Search returned only six of my 2,663 images on Flickr leads me to believe that Microsoft or Iconic Britain simply fished for a small sampling of interesting photographs in order to have something for the "entrants" to choose from in a hurried, slapdash attempt to market it's search engine. Otherwise, I think that you may have coding problems. Google returns over 7,000 hits for my search of M Styborski. Regardless, the software is not my concern. The misuse of my work is. I thank you for your time and understanding in the quick resolution of this matter.

Now there are two ways these photos could have been returned in the Live Search search:

1) Microsoft/Iconic Britain/Thin Martian downloaded my images, renamed them and is hosting them without my permission, in which case they are guilty of violating the Flickr API and my copyright.

2) Someone else has posted my photos, stripped of the EXIF data, and Microsoft is simply guilty of having pathetic web gurus who couldn't code a proper If/Then/Goto.

As previously mentioned, the BHL banner seems to point the blame directly at MS/IB/TM since the only place it resides is on my Flickr profile.

Add to this, the fact that according to Pro-imaging, Nikon withdrew all support, including the services of Simon Coleman, General Manager, Imaging Division, Nikon UK Ltd who was to be one of the judges. Nikon says it will still honor it's prize commitments, but that due to overwhelming concerns of copyright violation, it will no longer sponsor the competition.

I still have yet to hear from Thin Martian, the British based web designer, about my images and how they came to be stripped of EXIF data and renamed, but I'll keep you informed when and if I ever hear anything. I have visited their website, and I must say, for a "creative" agency, their site is about one step above some of the more basic 'point-and-click' web design software. Clearly Thin Martian bit off much more than it could chew in this instance. Never send a forty-something design school grad to do a twelve year-old Mac owner's job.

I'm sure that this is just the beginning of the storm. Keep in mind that Microsoft hired lawyers away from the US Copyright Office and set them to fine-tuning the Orphan Works Bill which is designed to strip copyrights from older works whose creators can't be found. (And depending upon individual interpretation, could strip copyrights from almost any Image you have.) I'll keep folks updated as best as I can. Until then, let the photographer beware.

From Pro-Imaging:

Microsoft Corporation Statement

We are grateful to Pro-Imaging for raising its concerns about the use of photographers' works on the Iconic Britain website. Although this was only a short marketing programme, it’s always very important to Microsoft that we respect the intellectual property rights of others. We apologise that we have not lived up to our ordinarily high standards.

We have since taken steps to obtain the rights to use every image to be featured in the subsequent stages of the Iconic Britain competition. We also welcome the invitation by Pro-Imaging to discuss with them best practices when using photographs in similar competitions.

Microsoft Corporation

We have since taken steps to obtain copyright? So, they admit that they didn't care about copyright issues in the first place? Their usual high standards? Similar competitions? They intend to do this again? Amazing, incredibly typical.

I have learned that the Iconic Britain "contest" closed two weeks early. Initially there was speculation that this was due to complaints of photographers around the world, but now the buzz is that someone hacked the website code so that instead of randomly picking a prize winner every hour or so, everyone who submitted a photo won. This supposedly went on for several hours before MS/IB/TM found out and closed the "contest." Microsoft is expected to to send "too bad, you lose" e-mails to anyone who "won" a camera during the last few hours of the "contest."


I have received Microsoft's reply to my last letter:

Dear Mr./Ms. Styborski,

Thank you for contacting Microsoft regarding and for your follow up comments.

Over the past few days, we have heard from numerous photographers and/or copyright owners. We very much appreciate hearing about your concerns and the opportunity to respond to each of you directly.

The site and associated contest was intended to provide an opportunity, via common search practices, to showcase your work and to have users praise your work by voting it into the contest. In no way was it ever our intention to misappropriate your work, misrepresent its source, or to inappropriately trade on it in any way. Microsoft is a significant holder of intellectual property and we do understand the importance of intellectual property and the need to respect its integrity, whether ours or yours. We take that very seriously and we are genuinely sorry the search feature on the "iconic" site did not live up to our high standards. It was a mistake and we accept full responsibility. We never intended to disrespect you, your works and your rights. Please be assured that your works were never distributed or otherwise used commercially, and all of the images resulting from random searches have been removed from the site and are no longer available for display.

As you know, the voting phase of the contest has been closed . The final phase of the contest, which ends August 14, 2008, will contain only fully licensed images for our users to vote on. If you are interested in participating in this phase, we would appreciate the opportunity to engage in such discussions. Time is of the essence in this regard, so please let us know as soon as possible.

Again, we truly regret the outcome caused by the initial phase of this contest. We hope you will accept our sincere apology and allow us an opportunity to regain your trust.


J.K. Weston
Legal and Corporate Affairs
Microsoft Corporation, USA

Form letter? No doubt. Sent by robot? Probably, considering I received it at 8:30 PM, meaning it left London at 2:30 AM. Does it make me feel better? Sort of. While Microsoft accepts responsibility for the search engine not working properly, they maintain that my work was not distributed or used commercially, yet state "and all of the images resulting from random searches have been removed from the site and are no longer available for display." So they did indeed hijack images and store them on the IB site. Where do I go from here? I'll have to ponder this.

For more info on this, here are some sites of interest:
Iconic Britain (no longer searchable)
Thin Martian
Other sites covering the debacle:

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