The court ruling is a victory for the photographer but will do little to clear up a brewing legal storm over who has a right to photos posted on social media. Consider the ironic mess we’re in: on one hand, news companies depend on Twitter and other sites for news pics — but on the other hand, they sue if other people use their own photos.

Here’s a plain English explanation of the court case and how it relates to the larger trouble with copyright laws in the age of social media.

No, you can’t just have those photos from Twitter

When a devastating earthquake hit Haiti in 2010, news agency AFP turned to Twitter and discovered a user’s “exclusive photos” of the disaster. AFP took those photos and shared them with photo service Getty. The Washington Post then took the photos from Getty and published them on its website.

There was a problem, though. The user who claimed to have the “exclusive photos” had taken them from another Twitter user who was the actual photographer. This meant that Getty and the Post published photos without permission and with the wrong attribution.

When the photographer sued the news agencies, they responded by saying that his decision to put the photos on Twitter amounted to granting a public license for anyone to use. The argument isn’t as far-fetched as it sounds. Consider what happens when I see your photo on Twitter and retweet it — I’m taking your work and republishing it. Is it so different if the Washington Post does the same thing? The court seemed to think so. Here’s the key passage:

The judge’s conclusion led her to grant summary judgment against the AFP and the Post which means they now must pay up to $150,000 for each photograph. (The case against Getty goes on — see the marked up copy of the ruling below for details).

The court ruling solves nothing

The fight over the Haiti photos has received a lot of attention because it involved a natural disaster and a David vs Goliath storyline. But the reality is that, in the age of photo sharing, these sort of photo disputes are blowing up all over. As my colleague Mathew Ingram explained last week, a dispute between BuzzFeed and Reddit over photos is just the tip of the iceberg due to a web “remix culture” that makes image reproduction easier than ever.

This tension over photographs is only going to grow as smartphones spread and people post more pictures online. Meanwhile, social media images are becoming ever more essential to news reporting. This week, for instance, British newspapers all relied on a user’s Twitter photo to report on a London helicopter crash.

This situation means news agencies will keep finding themselves on both sides of the copyright debate. Getty, for instance, is not just a defendant in the Twitter case. It is also making major money by combing the web for people who use its images without permission — and then extracting expensive legal settlements.

There is no easy solution to this copyright mess. One suggestion is a universal licensing scheme that provides a guaranteed payment, or at least an acknowledgment, to people who happen to be in the right time and place to take an important photo. A more likely outcome is that companies will continue to press courts to push the bounds of fair use ever outward or, as in the recent Instagram debacle, consider changing their terms of service in order to strip user rights to photos in the first place.

Twitter pic opinion by

(Image by Lisa A via Shutterstock)

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Photos everywhere mean more places for creativity and beauty — but not everyone is happy. Professional photographers are furious when they see people help themselves to their work without payment or permission. Why should these people use someone else’s labor for free?

It’s a fair point. Unfortunately, though, the solution to unlicensed images has often proved worse than the problem itself. As photos spread across the internet, bands of lawyers are springing up who offer themselves as hired-gun enforcers to image owners. When they find a target, they squeeze them for thousands of dollars and take a cut of the loot.

This is not some rare example. Major image owners like Getty possess image recognition software that lets them quickly detect unauthorized use of their images. The legal settlements they collect have become a major source of revenue.

So what’s wrong with this approach? After all, image owners have the copryight and users should know better. The problem is that, in most cases, there’s little connection between the harm and the damages. When a blog or a small business or a Tumblr user posts a picture, they don’t deprive the owner of thousands of dollars but are simply using an image that could, in most cases, be replaced with many others.

The culprits in these cases are usually careless or ignorant yet they are treated as willful criminals. The approach of Getty and others reflects the mistakes of the music industry in response to MP3s — failing to distinguish between average fans and professional pirates, and embittering a whole generation of users.

That’s why the copyright perspective of micro-stock agency Dreamstime is so much more sensible. Unlike other image owners, Dreamstime does not sic lawyers on people who like its photos. Instead the company, which claims to have more than 5 million users, responds by sending them a notice to take the image down or else to buy a license at the going rate which can be as low as $8.

According to CEO Serban Enache, this approach actually leads to better business.

“We want to respond to copyrighted images but we want to do it in a different, non-heavy-handed way,” said Enache in a recent phone interview. “This is very successful way of turning unauthorized users into customers. Once they learn of the license, they often obtain larger licenses.”

Meanwhile a Getty spokesperson said the company is not considering such an approach: “The DMCA [copyright] takedown process is not an adequate remedy by itself because it does not ensure that our photographers receive compensation for use of their images.”

This perspective seems misguided. While professional pirates deprive creators of their due, the typical photo infringer is not taking money from photographers’ pockets — they would never have received that money in the first place (I suspect that most of the money Getty collects goes to the company and lawyers, not to the photographers).

Finally, the reality is that photos aren’t worth what they used to be. We’re no longer in the days of darkrooms but instead live in a world where everyone has a camera all the time. Photos are increasingly more commodity than art.

The point is that, in the age of Instagram, Getty and others should save their big guns for the real bad guys and start treating casual infringers as potential customers rather than hardened criminals.

(Image by PLRANG via Shutterstock)

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And now that repository is about to pay off for some of SoundCloud’s 20 million users. SoundCloud has just signed a deal with Getty Images that will make it possible for those users to license their sounds to anyone who’s willing to pay – most likely advertisers and other creatives. (Hear more about the future of SoundCloud from CEO Alex Ljung at our RoadMap conference on November 5th in San Francisco).

“SoundCloud’s partnership with Getty Images Music creates a powerful offering to our community of professional and casual creators,” Ljung said in a statement. “Now through Getty Images Music, songwriters and audio creators can broaden their exposure and potentially monetize sounds they’ve shared on SoundCloud.”

The system will be quite straightforward: each user will be able to install a ‘license’ button from Getty Images Music on their SoundCloud players, for tracks that they want to monetize. Those who want to license the track just click the button and send a request.

Beyond that, depending on how much contact information the SoundCloud user has provided, and whether or not they’ve already sent a tax form to Getty, it will take between a few days and a few weeks for the track to become available.

Getty’s rate card details how usage in web or mobile advertising will cost $350, inclusion in corporate marketing will cost $1500, and so on. The creator gets “35 percent of the upfront licensee fee plus 50 percent of Getty Images’ share, as publisher, of any backend performance royalties”.

And what if the user’s sounds get used in something that’s broadcast? Depending on what type of licensing that’s been chosen by the user, Getty registers the track with performing rights organizations and administers the royalties – 100 percent of the ‘writer’s share’ goes to the creator, along with 50 percent of the ‘publishing share’.

Funnily enough, I’d noted before that Getty was sniffing around the Berlin scene, but I’d assumed that the fruits of that interest would be seen first in a collaboration with an image-centric service, probably EyeEm.

SoundCloud is the pioneer and leader in what it does, i.e. being a YouTube for audio. It’s wildly popular, but its monetization strategies appear limited. Audio-player deals and those pro-account subscriptions can only take the firm so far.

Unfortunately, this is still not a new monetization strategy. SoundCloud doesn’t take a cut, nor does it require users to be paid-up members in order to take advantage of the licensing service.

That means it remains possible that SoundCloud will adopt audio advertising, which is something I feel would drive away many users – particularly as SoundCloud does not tend to offer the same kind of continuous listening experience found in the likes of Spotify.

UPDATE: I originally got the wrong end of the stick regarding SoundCloud taking a cut of the licensing fees. To misquote Obi-Wan, this was not the monetization strategy I was looking for.

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The result for Getty was a 20 percent increase in the efficiency of its software development throughput. At Rally, they gained increased insight into what tools their customers need to manage portfolios of information technology projects.

Nina Schoen, Getty’s senior director, planning and program management, describes their introduction to Rally’s preview of its upcoming agile portfolio management offering, Rally Portfolio Manager, as an “amazing coincidence.” Explains Schoen, “We were about to start moving to this new portfolio management workflow, and a team member knew that Rally was interested in a portfolio management offering … the feedback loop was instant. I’d never participated with a software partner like that. Catherine Connor [product manager at Rally] has amazing listening skills. She was really able to fit into our shoes.”

Getty had started the transition to lean/agile software development three years before meeting Rally. Getty was excited about the benefits of the new development approach, but Schoen notes that they felt their business stakeholders were distrustful and frustrated with the process. “We used Alan Shalloway from Net Objectives [consulting services] to understand what was at the root of the business dissatisfaction,” Schoen says. “It wasn’t around the technology, but rather around how we organized the work. It hit every single way we organize the work — new roles, how we manage the portfolio of projects at the exec level, how we set expectations around delivery.”

The Rally/Getty co-design highlights how technology and organizational practice can be built together to achieve clarity around needs and expectations. Schoen says that before the technology and organizational redesign,

Our planning process was flawed. ‘Here’s what we’re going to do in Q1, Q2 …,’ but when we looked at the list it was probably four years worth of work. The priorities were unclear. Our businesses didn’t know who to contact to get what done and how things got decided. We had steering meetings where we came to consensus, but it was a very imperfect model.

The situation improved after the process change and the implementation of the Rally Portfolio Manager preview. “We now let lines of business set their own priorities,” says Schoen. ”There’s less disruption as things are more visible. Accountability is back in the hands of the business where it should be. We don’t set time frames until we’ve started something and know a lot more. So many companies build road maps that are just plain wrong. Now we have the trust from our executive team — things are going to change, we’re going to learn more …”

Schoen says that they didn’t receive any pushback from the businesses:

We’d gotten to a point where the problems had become clear to the company. This change was really a process change that had a toolset … Changing how people think about how things work is always hard, but we got through it. It helped that we have a culture of change at Getty Images — that [the businesses] have a voice.

Co-creation is a deep form of transparency. With transparency, you can see the project developing. With co-creation, you can tailor the design.

Getty was able to rebuild wireimage.com, a Getty Image website that is critical to the entertainment area of its business. Schoen says, “That site had a lot of functionality that was unique, but we wanted to make that functionality available on other sites. Because of the new workflow we were able to bring that to customers a ton faster, potentially six months faster, a bit of wild guess but probably true. And they love it.”

And what did Rally gain?

Rally could see the explicit and tacit needs Getty had in its process. “This led to the delivery of Rally Portfolio Manager, which makes Rally a single system of record for both business and agile development teams to gain visibility into development progress,” said Catherine Connor, product manager.

Co-creation, available to use through better communication and changing norms, is one more step in reducing barriers between what a business needs and what it can get from its suppliers.

How else can co-creation speed up and improve our professional relationships?

Image courtesy of Flickr user lumaxart.

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Getty has signed on by Bloomberg, the American Museum of Natural History, MacNeil/Lehrer Productions, Barcroft Media and Boston public broadcaster WGBH to license their video content to its customers. With tens of thousands of new pieces of content, That brings its total library to more than 825,000 video assets. More importantly, however, it brings a whole new type of video to Getty’s customer base.

While it might seem like newsy clips would have a short shelf life for a stock footage library, Getty’s director of video partner development Karen McLaughlin told us in a phone interview that the company is seeing a lot of demand for fact-based material. Demand is coming from documentarians and educators, among others, who wish to use footage from iconic moments and historical events.

Since Getty shares its licensing fees with partners, it provides a potential new revenue stream, particularly for content that might not seem timely after it’s filmed. And for those looking to accentuate their content, historical news or scientific clips can provide some additional weight to their films.

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Pond5 started as an independent video licensing marketplace for creators that needed supplemental shots to round out their own productions, as well as those that wanted to make their content available to others for a fee. The startup launched with a simple licensing model — give licensees a worldwide, royalty-free license for content in its marketplace — while also giving licensors an attractive 50-percent revenue share split and the ability to set their own prices for content.

Over the years, the model has caught on, in part because Pond5′s library tends to be attractively priced, while also offering its content partners the best revenue split around. But the company didn’t stop at video; the company realized its customers also needed sound effects and music, and began offering those assets as well. Pond5 also recently enabled effects makers to make generic after effects available to other content creators. Since launching in 2006, it has doubled its media library every year. So it’s no big surprise that the company would start licensing images as well.

That said, it’s taking a bit of a different tack with its new photo library; rather than opening its system to allow anyone to make their photos available through the site, it’s partnering with sites like 123rf and striking revenue-sharing deals with them. That has helped it launch the photo portion of its service with more than 5 million assets, rather than having to wait for photographers to start contributing their own assets.

Pond5 CEO Tom Bennett told us in a phone interview that the addition of photos is a natural extension of its media library: “A lot of people have been asking for photos. In general, people who are producing media are not just confined to one area, but they’re doing a little bit of everything.”

Unlike some of the big stock photo sites, Bennett said he didn’t find photos particularly interesting by themselves, but “as a complement on the video side it made a lot of sense.” Photo licensing is a large and crowded market, so it’s unlikely Pond5 will take on the big boys head-on. That said, the addition of new media to work with will no doubt be a plus for its existing customers.

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Through his work, part of a larger effort at the university, it was concluded that TCP, which came into existence in 1981, needed to be replaced by a more updated technology, one that could handle today’s Internet traffic. This updated version would take into account ballooning file sizes, the availability of fatter pipes, and the hyperglobalization of the Internet. In 2002, the researchers offered up this approach to TCP — called FastTCP — as a new standard.

That same technology is the bedrock upon which Low (as CEO) and Cheng Jin (as VP of engineering) have built FastSoft, a Pasadena, Calif.-based startup with $4.3 million in funding from Miramar Venture Partners and Caltech. (The company is currently meeting with VCs in the hopes of raising a new round of funding.) The two-year-old startup has developed a device that sits between a router and the Internet (or any other wide area network) and ensures the faster, smoother delivery of data.

FastSoft’s technology can be filed under the general “Internet acceleration” category along with the tech sold by vendors like Cisco, Juniper and Riverbed Technologies. But FastSoft’s true competitors are in fact content delivery network providers such as Limelight Networks. Typically a CDN has points of presence across the globe that are wired together for the specific purpose of quickly delivering information, mostly by offering up information from POPs that are closest to the Internet surfer.

By comparison, FastSoft’s technology allows you to get the same results by serving up information to one location from another, regardless of how far apart they are, without going through an expensive CDN. This is one of the reasons why tiny the startup counts the likes of Honda, Post Group, Reuters Australia and apparently Getty Images (though I haven’t yet been able to confirm this) among its customers. It also just snagged Technicolor, which, like Getty, is building what amounts to its own digital asset distribution network and will use FastSoft to deliver big production files to remote locations.

One of my sources tells me that FastSoft is also working closely with Internap, a company that operates data centers and a CDN. According to some of the experts I spoke with last week, a partnership here could be a game-changer for data centers, since buying and deploying FastTCP would save them a ton of money on bandwidth, a big factor these days due to the explosion of online video.

What’s Wrong With TCP? Nothing, But….

In order to understand FastSoft (and FastTCP), one needs to step back and understand TCP, specifically how it works and what its drawbacks are: In data transmission, a TCP client receives a packet; it then sends back an acknowledgment of that packet to the sender. Once the sender receives the acknowledgment another packet is sent, and so on. At any given time, an untold number of packets can be mid-transit.

This stream, Low explained to me, is where problems can crop up. TCP is based on the additive increase/multiplicative decrease (AIMD) algorithm, which slowly increases the speed if delivery is going smoothly, but when packets start playing truant, decreases the rate of transfer by half — sort of like going from fifth gear to second, without the option of gradually slowing down. (See the sawtooth-like pattern in the accompanying chart.)

All of which is fine when it comes to lightweight files such as emails or plain web pages, but makes the transferring of large files such as videos clips painful. As FastSoft executives pointed out, a 30 percent reduction in throughput on a 10 Mbps DSL line can mean the difference between an HD movie experience and a standard definition one. A 50 percent slowdown on a high-capacity line, such as an OC-3 connection, means the speed capacity goes from 155Mbps to a mere 77.5 Mbps.

What Makes FastTCP Better?

The idea behind FastTCP, Low explained, was to overcome the shortcomings of AIMD. He and his fellow researchers found that if they measured the time it took to send and receive acknowledgments from receivers, along with tracking lost packets, they could overcome the problem of traffic overflows and make the transfers smoother.

To that end, FastSoft has developed a box called the E-Series Accelerator, which figures out the fastest way to deliver packets to the end destination without flooding the networks, thus restricting packet loss to a manageable level.

The system can also use intelligence to figure out if the packet losses are random or if there’s a major underlying problem, like network congestion, and take appropriate preventive measures. Getting back to my automobile analogy, it’s like having a speed radar and a live traffic feed along with the ability to smoothly downshift gears.

Why It Matters

One of the reasons I got so excited about FastSoft is because there’s no technology required on the recipient site, nor does there needs to be any change to the current TCP paradigm.

To be sure, nothing is a slam dunk. There are a lot of things that need to go right in order for this company to make it. And they will undoubtedly be asked to explain the logic behind putting yet another potential point of failure inside the network.

Low, however, is confident that the cost savings (by not paying big bucks to CDNs) on infrastructure and bandwidth, along with the ability to ensure the smoother (and faster) delivery of data, is going to convince large companies dealing with big digital files to try out FastSoft.

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The photos are displayed in a flash media file and can be embedded on any web page, just like YouTube. PicApp makes money off contextual advertising it embeds in the photos, and in turn shares it with the photo agencies. The new service is a sign of how tough things are in the stock photography business, where new and low cost competitors are emerging thick and fast, and challenging the old dogs like Getty Images.

PicApp’s business approach could be best described as “making lemonade when life serves you lemons.” It’s parent company is Israel-based PicScout which has technology that helps image copyright owners identify the copyright infringements online. Eyal Gura, CEO of PicScout told us that there are millions of photos that get taken from the sites of big photo agencies and show up on the web (replete with watermarks.) Litigation seems like a losing battle, but free ad-supported photos is worth a shot.

While most of us tech bloggers don’t have a pressing need for news photos to accompany our posts, the service can be useful for small websites and blogs that follow politics and news. Hollywood gossip blogs could find use for PicApp.

That said, PicApp will need a very large number of embeds in order to bring any meaningful revenues. I think it is a challenge that has confounded all “embed”-based businesses. On the other hand, larger sites that can provide large traffic volume like PopSugar and Defamer can afford to pay for the photos and use that as a way to stand out from in an increasingly crowded market place.

Update: Michael Arrington wrote about GumGum that has taken a similar approach to the stock photography market place.

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Now New York-based startup PhotoShelter wants to give Getty Images a run for its money, launching a service that gives photographers more money, and photo editors a new, fresh stock of images from which to choose.

The two-year-old PhotoShelter was started by Allen Murabayashi, Jason Burfield, Jeffery Arnold, Thomas Chin and Grover Sanschagrin refugees from HotJobs, as a storage service for photographers. That didn’t work out, so the company rebooted and reinvented itself as an image marketplace. Update: In addition to the storage service, which currently signs up more than 1,000 new photographers every month, PhotoShelter became an image marketplace.

“Photo editors are looking for new images, the kind you find on Flickr,” says Emily Hickey, PhotoShelter’s vice president of products. But there isn’t an easy way to buy from Flickr. Getty’s stock photos, on the other hand, are expensive, and have a certain tired feel to them. And photographers aren’t too keen to give around 50 percent (or higher) of the total dollars a photo fetches to Getty.

PhotoShelter, in contrast, will pay out 70 percent to the photographers and keep 30 percent of what a photo fetches. Photographers like it — the company has attracted 6,000 photographer accounts, 200 buyer accounts and over 250,000 images. The service launched just before Thanksgiving Day. Unlike the iStockPhoto and microstock agencies, PhotoShelter plans to sell its photos for, on average, between $100 and $200 a pop, and never any less than $50.

“What we are doing is trying to commercialize the crowd-sourcing model for photos,” says PhotoShelter co-founder & CEO Murabayashi. In addition to traditional buyers, such as advertising agencies and publishing companies, Murabayashi is hopeful that web publishing will open up new opportunities for the company. It’d better, because the two traditional buyer groups are in retrenchment mode. PhotoShelter closed a $4.2 million Series A investment round from General Catalyst Partners back in March.

Crowd sourcing and photos are a happy (if somewhat less splashy) marriage. 8020 Publishing’s JPG magazine, which sources its entire content from its community, has been slowly and steadily growing its readership. There is no reason why PhotoShelter can’t take a decent bite out of Getty’s over $800 million a year in revenues.

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