In Response: A letter to Corynne McSherry

A senior lawyer at the Electronic Frontier Foundation wrote an opinion on her blog today talking about the intellectual property rights agreements that Burning Man places on its participants. Corynne McSherry argues that since Burning Man protects content generated at its private events and aggressively defends its trademark, the Burning Man Organization is in essence destroying First Amendment rights, comparing their actions to those of doctors who require patient warnings published on forums to remove their comments of their service and refrain from discussing any experience with the medical professional.

McSherry's red herring arguments notwithstanding, her assertion that the actions of the organization are a step to Big Brotherhood culminate in her final paragraph:

The BMO’s motives here may be more laudable than those of the paranoid doctors. But the collateral damage to our free speech is unacceptable. Using take-it-or-leave-it fine print to assert veto rights over online expression is no way to promote a “society that connects each individual to his or her creative powers.” Burning Man strives to celebrate our individuality, creativity and free spirit. Unfortunately, the fine print on the tickets doesn’t live up to that aspiration.

And, as any lawyer should know, fine print isn't -supposed- to promote the lofty ideals of First Amendment rights and free speech, nor the basic rights of the consumer. Fine print is there to make sure the slippery bastards who try to use legalese for fun and profit as an end-run around the intentions and ownership of content get hauled up by the short and curlies.

In my opinion, McSherry is acting as legal apologist for many websites and content hosting "providers" that, in exchange for hosting media on their websites, cheerfully co-opt the user's content for their own purposes. McSherry seems to pretty much ignore the idea that the only way to protect user-generated content from such an event to be abused at will by commercial interests is to place restrictions on the content generated from the get-go. As such, since Burning Man is a private event held on federal public land, the organization is legally able to act as the curator of the content; albeit the largest amount of content generated at any single point in time, simultaneously.

McSherry's position is untenable for me both as a participant and as a user. I take serious steps and precautions to prevent my information from being used, and I don't allow companies that slyly introduce "I Own All Your Stuff You Put Here" clauses access to things I care about. As a result, I come down solidly on the side of the Burning Man organization - because frankly, if I wanted to sell a picture of me wearing a bright orange Muppet vest to Facebook, I would have offered it to them for $20 a use. Since I cannot tell Facebook to remove the picture of me that someone else uploads, I -CAN- use Burning Man's legal requirements as a private event and agreements to destroy or take down unauthorized images of myself or my friends if those images come up.

In reference, I suggest folks read about the lawsuits between the publishers of the Girls Gone Wild video and their distribution of Girls Gone Wild: BURNING MAN. Most specifically, the protection that thousands of women received from unauthorized portraits of them in nude states. It could be argued that a nude person in a public space has no right to privacy regarding their image, but as Burning Man is a private event, each person who attends the event has a measure of protection from inadvertently becoming a pornographer's meal ticket.

I wrote an open letter back to Corynne McSherry, the text of which is published below.

For a full version of the article, click here.

Hello Ms. McSherry. I read your article with interest regarding the photography and video rights of the individual at Burning Man, a ticketed, private event held on public land.

While I agree that for the most part the ownership of information or content belongs to the individual, I question whether or not you did research with the individuals who were responsible for the implementation of the policy. Namely, Camera Girl of Burning Man and Marian Goodell, whose rationale behind the policy might not agree with your analysis.

If I'm to understand your position, a concert held by a popular recording artist, a writer whose blog is available publicly or privately on any server accessible via Internet, or a ticketed art opening with a strict "no photography allowed" rule posted blatantly at the door, attended by people who smuggle cameras in, should not be able to hold anyone legally accountable if someone intentionally violates the intellectual curation of that content.

If you would like to know my reasoning, I suggest you look for "Girls Gone Wild: Burning Man" - published by that guy out of Florida whose entire career has been focused around aggressively filming drunk women topless for profit, regardless of the legality.

Thus, I read the article with severe disappointment. You purport to be an advocate for intellectual property ownership, and yet you take a position that destroys any protection of the end user by commercial interests.

Your article presupposes two things: that the event is public. It's not. Burning Man is a private event held on public land. If you try to get in beyond the orange trash fence without a ticket you will be escorted away for trespassing by a federal officer.

Second: your article presupposes that companies such as Facebook, MySpace, and advertising sites trawling the Internet for image content based on keywords are doing so for purely free access distribution.

Your entire argument is predicated on the idea that Burning Man, as an organization promoting creative self-expression in a protected, private environment, is somehow crushing the intellectual freedom of its participants.

However, as a long-time participant, I can assure you on every level that this is not the case.

In the exception that proves the rule, Jones Soda has used an image of a sculpture, "The Passage", as an image on their soda, but since the image was uploaded using Jones Soda's image marketing tool, it does not fall within the category of prohibited material. Since the vast amount of images uploaded and used by Jones Soda are user-submitted with no cost benefit to the submitter, it could be argued that The Passage, originally built and shown at Burning Man, should be a clear lawsuit waiting to happen against Jones Soda.

However, the image used by Jones Soda happened to be of the public artwork as it resided in a public park in Burien, WA. As far as I know, no lawsuits are pending - PRIMARILY because Jones Soda did not label the soda "BURNING MAN CREAM SODA" or anything remotely as stupidly market-drivelled. It just printed a picture some of its consumers liked on their cream soda product, of an art installation that had at one point been to Burning Man.

Were your assertions correct, the Burning Man organization should be suing the pants off of Jones Soda for the temerity to place an image of the Passage, a returning sculpture and art installation to the event, and technically under the organizations "fine print" clause.

I've yet to hear screams of outrage over the bright blue soda with the neat sculpture picture on the front.

The Electronic Frontier Foundation would most definitively argue that I cannot take the name EFF and make it something else entirely, especially if my version of the Electronic Frontier Foundation was a nonprofit dedicated to Fantasy Wild West CyberNerd re-enactment, nor could I label my P2P file sharing software "EFF.ORG APPROVED! Download and screw the man! Viva La Electronic Frontier Foundation!" without peeing in a whole bunch of Cheerios.

It is so with Burning Man and the event. The rules as I read them are put in place to prevent users from having their content jacked by unscrupulous companies. Facebook's content rules, up until recently, placed ownership rules on the content uploaded to their site and turned those images over to their advertisers in an effort to maintain ANY kind of profitability.

One does not get to point the finger at the content license holder and say, "SEE? SEE? They're crushing all independence! They aren't letting anyone use their content!" while simultaneously defending the right of Facebook to abuse the same content.

EFF.org, nor any other organization, would ever permit the actions which you suggest. The hyperbolic screams that come out aren't regarding companies and public sites that PROTECT the intellectual copyright of the user, such as Flickr or other paid sites that have a hosting model of images, but rather over companies that co-opt the uploader's rights regardless of subject.

Therefore, regardless of what you think should or should not happen or be interpreted by the event, its protection is in place to prevent media companies that also have aggressive media ownership policies, like Facebook, from using private content for profit without recompense or attribution. As an intellectual property attorney, I would hope you understand the inherent damage that could occur.

To be clear - the image of me holding my infant nephew on a couch and napping that is uploaded to Facebook, by their ever-changing policies, is now the property of Facebook, even though it is the intellectual property of my sister, who performed the effort.

That is what the rules of Burning Man, to me, as a user and as a Burning Man participant, are intended to protect against. If I am photographed at any event that is private without consent and published, under the rules of the Burning Man organization, I have legal recourse against the publisher. Not so under the interpretation you have published.

But I am not aware of your level of depth or knowledge on this subject, or more specifically, of any other organization that acts as a responsible steward of the intellectual property shared in a private space. The images captured at the Burning Man event, to me, are no more MINE than the pictures of art that I take at a gallery for my personal use.

When those images are then commercialized without my consent, I must assume that the entity which performed the commercialization -must- be able to be stopped, just as an indie musician with a killer CD should be able to order a cease and desist from a rival organization ripping and burning his creations, and releasing it for their own profit. If I curate a gallery and images of the portraits are downloaded and sold, as a curator of a private gallery, I -must- be able to stop the intellectual property theft.

Ms. McSherry, I am sorely disappointed in your lack of research and perspective, and your apparent lack of information gathering from both key individuals within the organization and active participants. Your failure to garner primary source material regarding this issue makes me wonder why you even bothered covering this issue. In this instance, at the very least, your opinions look less like rationality, and more to be similar to those used by PETA in their debate tactics - namely, to scare people into reacting as if Burning Man is an Evil Very Bad No Good Corporation(tm) instead of focusing on the issue at hand - unauthorized use of personal imagery from private events.

In the future, I hope that you refrain from issuing opinions that enable the unauthorized dissemination of private information - something that, up until now, I believed your organization opposed, both in theory and in practice.

Ms. McSherry, this opinion piece, at the very least, makes me ponder whether your organization is truly interested in looking at the issues surrounding intellectual property and copyright, privacy, security and liberty, and more about enabling people to land-grab anything they possibly can at the expense of the artists and art. You are not entitled to my image; nor is Facebook. You must ask permission to take my image if I am in a private environment; that is written explicitly in the code of conduct of the event.

To act shocked and horrified when a private organization requires that the images taken at a private event be for personal use only and not commercially used is a little naive, especially for a senior intellectual property lawyer.