Adobe is currently beta testing its Photoshop Express ('PSX') online image editor with built-in photosharing. Users open an account on an Adobe server and PSX can upload, edit and share their photos in a manner not dissimilar to Flickr - but with browser-based Photoshoppery added. All very funky, coolly Web 2.0 and easy for the user, but there is a catch : in order to use the service you not only grant Adobe a perpetual, royalty free license to distribute and share your work, you also grant any other user of the service the irrevocable right to use your work forever, free of charge and in almost any way they see fit.
Here Adobe encourages users to pillage each others work:
So someone else took the coolest shot you've ever seen! Now you can download photos from anyone's public albums and keep a collection of your favourites. Download straight from a slideshow (the link is in the lower left corner of your content) or from the Photo Options menu in grid view.
And here is the download facility, generously offering the image in any of the configured sizes. Note leeching is facilitated by the 'Embed' link.
Flickr gets plenty of stick for careless treatment of photographers' intellectual property delivered through their API, but Adobe PSX looks to go significantly further. Flickr at least allows photographers to assign a license that limits use, or to reserve all rights so that sharing work and allowing it to be viewed does not negate copyright. Many PSX users will probably assume Adobe have implemented something similar, and will skip the T&C's. Adobe make this rather easy, all it requires is a tick in a box when you create an account:
You do later get to see the same T&C when installing the uploader software. We strongly advise that you make the effort to wade through them.
5. Sharing Your Content
One of the main purposes of the Service is to facilitate sharing among users of the Service. The Service enables sharing of Your Content with Other Users in several ways that include, but are not limited to:
1. by using the "My Gallery" function to post Your Content to the Galleries portion of the Service;
2. by using the "email" function to send an email, containing a URL link to Your Content, to recipients of your choosing; and/or
3. by using the "Link" function and/ or the "Embed" function to give others the ability to easily link to Your Content from any document or web page and/or to embed Your Content in any document or web page.
Once you share Your Content via any one of these or other sharing features, the shared portion of Your Content becomes Your Shared Content and you will be granting Other Users certain rights in and to Your Shared Content as further described below in Sections 6 (b) and 7. Please know that when you share Your Content, you may also make your email address and your Personal Sharing URL publicly available as well depending on how you decide to share.
6. Use of Your Content
This section hereby replaces Section 8(a) (“Use of Your Content”) of the General Terms.
By Adobe
Adobe does not claim ownership of Your Content. However, we do need certain rights from you, with respect to Your Content, in order to operate the Service and in order to enable you to do all the things this Service affords you the ability to do. Therefore, with respect to Your Content, you grant Adobe a worldwide (because the internet is global), royalty-free (meaning we do not owe you any money), nonexclusive (meaning you are free to license Your Content to others) fully sublicensable (so that we can permit our affiliates, subcontractors and agents to deliver the Service on our behalf) license to use, reproduce and modify Your Content solely for the purposes of operating the Service and enabling your use of the Service. With respect to Your Shared Content, you additionally grant Adobe the rights to distribute, publicly perform and publicly display Your Shared Content (in whole or in part) for the sole purposes of operating the Service and enabling your use of the Service and to sublicense Your Shared Content to Other Users subject to the limitations of Section 7 below. These limited licenses do not grant Adobe the right to sell or otherwise license Your Content or Your Shared Content on a stand alone basis. Further, you may terminate Adobe’s right to distribute, publicly perform and publicly display Your Shared Content by making it no longer shared. You may terminate the remainder of Adobe’s rights by removing Your Content from the Service. (Detailed instructions on how to do these things can be found at http://www.adobe.com/cfusion/webforums/forum/messageview.cfm?forumid=74& catid=684&threadid=1351324&enterthread=y). Upon removal of Your Content from the Service or upon making Your Shared Content no longer shared, Adobe shall have a reasonable time to cease use, distribution and/or display of Your Content. However, you acknowledge and agree that Adobe shall have the right to keep archived copies of Your Content.
2. By Other Users
You hereby grant Other Users a worldwide (because the internet is global), royalty-free (meaning that Other Users do not owe you any money), nonexclusive (meaning you are free to license Your Content to others) license to view, download, print, distribute, publicly perform and publicly display Your Shared Content subject to the limitations in Section 7. If you do not wish to grant these rights in Your Shared Content then do not share Your Content with Other Users. While you have the ability to remove Your Content from the service and/or the public areas within the Service and thus prevent future licenses from being granted, you acknowledge and agree that once Your Shared Content has been shared, Adobe can neither monitor nor control what Other Users do with it.
7. Use of Shared Content...
Adobe grants you a worldwide, royalty-free, nonexclusive license to view, download, print, distribute, publicly perform and publicly display content shared by Other Users with you via the Service or that Other Users make publicly available via the Service (“Shared Content”), subject to the following conditions:
1. Your rights granted by this Section are limited to your personal, informational, non-commercial and, in the case of a business, internal purposes only;
2. You may not sell, rent, lease or license the Shared Content to others;
3. You may not modify or alter the Shared Content;
4. You may not remove any text, copyright or other proprietary notices contained in the Shared Content; and
5. When you embed Shared Content on a web page, you agree that you will include a prominent link back to the Service from that page.
So, in other words, unless you really want to give away all of your work to the entire world, for nothing and forever, do not share photos via this service. Although 7.1 prohibits business use (other than internal!), 7.2 prohibits re-sale, 7.3 prohibits alteration, 7.4 prohibits tampering with metadata and 7.5 requires a link back to the service (not the photographer), this is all wishful thinking and a recipe for disputes.
For a start, what comprises business use, exactly? Is a blog that earns some cash from Google Ads commercial? Why is internal company use not commercial, a use that would normally attract a usage fee? Elsewhere Adobe repeatedly disclaims all liabilities for any problems arising, yet their license is what will create them.
Central to the issues that Adobe's sharing license creates will be the fact that in defiance of Adobe's own rule 7.4 prohibiting removal of metadata, like most other web services that resize uploaded images, all IPTC metadata is stripped from versions resized by PSX.
Along with the encouragements to email and download other peoples' photos this will ensure a copious global supply of orphaned works on the machines of people who will conveniently have no idea where they got them from. This is a wilfully irresponsible act, given the ongoing attempts to legitimise free commercial use of orphans in the US and EC.
What we have here is yet another example of an aggregator reinventing copyright custom and practice to suit their business agenda at a cost to photographers. Compare and contrast Adobe's cavalier attitude toward photographers'intellectual property with their own formidable license, that you have to accept when installing the PSX software:
The Software is protected by law, including without limitation the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly stated herein, this agreement does not grant you any intellectual property rights in the Software and all rights not expressly granted are reserved by Adobe and its suppliers.
No perpetual, irrevocable royalty-free clauses in sight there. Adobe clearly knows the value of keeping copyright in their own work, so why build a system to undermine photographers' copyright and the value of photographs, and to efficientlly distribute orphans worldwide?
To be fair to Adobe, you can upload photos and not share them, which prevents these problems arising, but the system is then of little use except as a personal cache. Flickr gets into enough trouble via Creative Commons licensiing and All Rights Reserved distribution. What possessed Adobe to insist on users giving away control over their work? Isn't this a case of eating your own children?
Alec, thanks for the response.
I understand that you need to formalise the sharing of photos via this service, but I would be interested in hearing why Adobe adopted the broad form of licensing that it has. Every photo website licenses viewers to download and view for personal use, implicitly or explicitly. Few of us would object if someone wishes to make a lo-res print to stick on the fridge. PSX goes further in order to permit users to 'print, distribute, publicly perform and publicly display content' (subject to the exclusions in s.7) and provides the tools to do so.
I would hazard a guess that the intention is to achieve a USP as a sharing service that facilitates broader use than most. So this royalty-free licensing has marketing value for Adobe, and you can do embedding etc. In the context where amateurs exchange photos that they perceive as having no commercial value and everybody sticks to the rules I can see this looks fair enough. The complication is that you open a door and whatever comes through it brings unintended consequences.
I'd argue that the RF license under which users download and make use of shared photos is irrevocable. Owners will not necessarily know who has downloaded and used what or for what purpose. How then can they or Adobe revoke the license or even enforce the terms? RF is of it's nature a one-way trip. One cannot revert to a more restrictive license without having it undermined by pre-existing versions in circulation under RF terms. And certainly under UK law, if you establish that you are prepared to allow cheap or free use, you set your market value that will limit any damages you may claim for overt infringement. Copyright itself becomes indefensible - and yes, this applies to microstock too : nobody will sue anyone to recover 50c let alone 0c.
I suspect that among your target audience, only a minority will read the T&C's, and fewer still will understand these implications. This has certainly been the case at Flickr where it has taken years of egregious poaching to awaken users to deliberate widespread commercial exploitation, often in defiance of licensed sharing rights. Why does Adobe imagine PSX users will be better behaved under a broad RF license than Flickr pirates are disrespectful of Creative Commons or All Rights Reserved limitations? And that's the trouble here : they won't be. Pro and amateur photography is not segregated like it once was, and nor are our predators confined by Chinese walls.
Of course this is caveat emptor and if users are indifferent to their rights or wish to dispose of them to the extent required, then that is their choice. But we can see PSX will be a mechanism that will be used by businesses, and nothing in the user agreement prohibits commercial uploaders.
For example a PR company may find it convenient to distribute PR photos to anyone who's interested through PSX. They may have obtained a license to distribute for PR use from the photographer or agency, but they will have no authority to negotiate a RF license with Adobe nor grant similar to any user who downloads the photos. Yes, I know your T&C prohibit this sort of thing, but as we see repeatedly, the web is subject to law of the gaps where what cannot be enforced goes by default and soon becomes the norm. The fact is that few people know or care about licenses and copyright, if they can get to it and steal it without detection, many will. Your T&C protect Adobe Inc. from the care-less user who uploads material they do not own and agrees a license they have no authority to negotiate, but do nothing to protect the photographer. Yet it is your mechanism that will facilitate their infringement.
In common with so much else Web2.0 novelty, this will benefit the aggregator - Adobe, here - and the user who gets something for nothing, and leave photographers chasing infringers for a living as an unintended consequence.
The orphans issue is also serious, given that two-thrds of images available through PSX will be stripped of metadata. Only full-size originals retain their authorship details, and that assumes the photographer embedded them in the first place.
I acknowledge that Adobe's resizing scripts are behaving no worse than the vast majority of server-sdie resize scripts. But the PSX context magnifies the defect : Adobe encourages and facilitates copying and distribution by PSX users. Do PSX photographers realise their authorship will often vanish, as a by-product? I see no license term that relieves them of their moral right to be identified as the author.
Nobody should imagine that replication will stop there. It only takes a few minutes with Google Images to see how copies spawn copies and copies of copies, with vanishingly few references to where they originated from. That is why Vic Perlman, ASMP's counsel, testified to the US Congress that 90% of images on the web are orphans. And that is why orphan works legislation is so profoundly dangerous for photographers. At a time when the photographic community is under threat of having its life's work annexed for commercial exploitation if it can be plausibly anonymised, Adobe's contribution appears perversely counter to the robust means of attribution we need but don't have.
©A admin
Photoshop Express
Hi Tony,
Thanks for your article about Photoshop Express; we listen carefully to all our audiences and reviewers as it relates to our features, ease of use, terms, and the evolution of all of those as the Photoshop Express service grows. I would like to address, though, the portion of your article surrounding the terms and features of our service that, you wrote, grant Adobe and our members "perpetual, royalty free license to distribute and share your work."
Our service provides the capability to store photos privately, as well as share them individually and/or publicly and to customize the terms of sharing for each set of photos shared. If a user doesn't want to pass on the rights to use their photos, whether that's for download, print, or embedding, then we absolutely support their ability to store and edit them privately.
However, Photoshop Express was designed explicitly to allow users to share with each other. While the terms of sharing can be controlled by those users, the controls and terms have not been designed to support professional use or transactions. In order to create a sharing service, the terms of our site need to articulate what it means for a user to release the rights of their work to another user. At the same time, in order for us to facilitate that transfer, there has to be a certain release to Adobe, just like there is a release to most other organizations supporting this sort of sharing environment. Our terms, as they relate to the rights that Adobe captures in the transaction, are actually more conservative than most sharing sites.
Finally, there are some errors in your article in the descriptions of the service that bear correcting, since they address your concerns about assigning varied rights to your shared items, both public and private. First, the license granted by a content owner is not perpetual, and it can be revoked as simply as removing the content from the site. Using the embed service for this sharing is the simplest way to enforce this revocation, because as soon as the item is removed or sharing is disabled, the capability to interact with the item is disabled. Obviously, this doesn't solve the problem of orphaned content; however, to try and control that issue, we do allow users to place restrictions on downloading and printing shared content.
Our intent in creating Photoshop Express was to create an environment designed for casual and aficionado photographers, who want to be able to freely and easily pass their images to others, both privately and publicly. As our membership grows and changes, we will provide new capabilities, and additional rights protection may be among those.
Thanks again for your review of Photoshop Express. I hope this note gives you the information you need to ensure that your audiences are presented an accurate picture of the intent and application of our features.
Yours very truly,
Alec Marshall Sr. Manager, Content & Community, Photoshop.com
Adobe Systems, Inc.
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