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PLEASE VOTE: Picture flagging policy

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1timspalding
Edited: Sep 24, 2010, 11:39am Top

I just brought back venue image uploading. It raises a question that's been raised in the past. This time I want to put the question to rest.

The vote

Vote: LibraryThing should change its image policy to conform only with the DMCA, which provides copyright owners with a way to remove images, but not encourage users to police images uploaded by others on copyright grounds.

Current tally: Yes 216, No 29, Undecided 7
See the post below for my reasoning. I will abide by what members think, unless discussion produces another solution, or the vote is very closely divided.

Let's reason this through. Please post your thoughts below too.

UPDATE: This change has been implemented. See message 86.

2timspalding
Edited: Sep 19, 2010, 9:49am Top

Background

LibraryThing is unlike every similar website I know in one respect—our policy on uploaded images and copyright.

At LibraryThing we allow and indeed encourage users to flag and remove images that lack a convincing copyright justification. A dedicated cadre of members keeps the site free of dubious images. Other members write special permission letters to authors, bookstores and libraries, asking for permission to post images.

Other book websites, and location websites like Yelp, don't do this. Indeed, with the partial exception of Wikipedia, I can't think of another user-contributed site that does things the way we do. On these sites, flagging is for spam, porn and other non-copyright concerns, and copyright is handled by adhering only to the "take down" rules of the Digital Millennium Copyright Act (DMCA).

The DMCA is an interesting law. It lays serious penalties for sites that knowingly violate copyright. But it grants "safe harbor" to sites that allow users to upload content. So long as the site allows copyright owners to submit "take down" notices, and the site acts on them, the site itself can't be held liable. "Safe Harbor" is why you aren't liable if someone posts a comment on your blog with a copyrighted poem in it. It's also how YouTube can be filled with millions of copyrighted clips, and YouTube doesn't pay damages on them.

Why I want to change

I want to change LibraryThing to follow the more common pattern of user-creates sites, following the DMCA alone. This means removing the ability for users to take down images for being justified on copyright grounds. Copyright complaints would be handled through the DMCA takedown process.

Here are my arguments:

1. The practice generates acrimony. Nobody likes it when their photos are taken down. It "gets up their nose," especially when the images are perfectly legal. From time-to-time this comes up, either in Talk or in my email, most commonly when an author joins the site, uploads their picture and then finds it gone because they didn't fill out the "Copyright Justification" box.

2. Promotional images. Almost all the photos on LibraryThing are "promotional" in nature, especially the author photos. Authors want their photos out there, helping to sell their books. Legally, it can be unclear. Some author photos are explicitly released for promotional. Others are implicitly so. It's perfectly clear that most authors—and publishers—want the photos to appear on websites like LibraryThing.

In the case of book jackets, it's clear that showing them in connection with promotion or commentary on a book is fair use. It's less clear with author photos. I suspect that showing low-resolution promotional images in connection with an author's books would hold up in court. But I'm not a lawyer and, critically, I don't want to have to act like one (see 3).

3. Legal risk. The current policy may be legally more dangerous for LibraryThing. The core of the DMCA's protections lies in not monitoring. If you monitor, you expose yourself to risk. Although it rarely comes up, I am periodically called upon to mediate in a picture-flagging dispute. To preserve LibraryThing's safe harbor, I can't be doing that. Legally, site management should be staying the heck away from such issues, and only responding to takedown notices.

4. Everyone is doing it. Ah, the ultimate moral defense! But it's true. They are, and it's hurting us. LibraryThing members are an insanely dedicated group. We have members—many members—performing tasks normally associated with a paid "permissions department." People love LibraryThing in a way nobody loves Yelp. But Yelp has more bookstore pictures, and one reason is that Yelp puts no barriers in the way of people seeking to make the site better. (And if any bookstore has ever sued Yelp for posting a picture of their store, I have yet to hear it!)

I have been proud of LibraryThing's stand here.

But at some point it just gets silly. I'm tired of angry emails from authors whose only offense was not realizing they had to justify copyright on their own photos. And I'm tired of a competitor sporting an attractive image of Shel Silverstein for years now, when a member's polite request to his estate was met with a nasty, threatening and legally dangerous reply--to sue us if we ever put such a photo up.

I pains me to suggest abandoning it. It pains me to change directions on the group that's been doing all the work here--diligently policing images for copyright. As much as I think it needs reforming, I believe in copyright. I don't steal music. I don't steal movies. And in the future I won't steal books. But this is a battle that doesn't need to be fought. We can respond to legitimate copyright concerns without creating acrimony and crippling the site we love.

3theapparatus
Edited: Sep 19, 2010, 9:45am Top

I'm voting no. I actually like the policy and use something like it on our own social network sites that we host. All the sites we host are very proactive on spam, copyright and the like and I fell that 1) it makes my job a lot easier and, 2) it's a much cleaner environment, and 3) it;s a closer knit of a group.

Having said that, I will make one suggestion. All those extra fields that you mention? Put them in front of the upload button. I think most folks don;t notice them because they're underneath the upload button and in fact on my screen outside the box. You have to pan down to see them. I find it to be a very strange setup how the box is currently.

Also raise the bar on voting. Currently I think it;s 4 votes and it gets removed? Make it something like 15 like that tag combining. Also allow 24 hours or enough time for the uploader to notice that something is amiss and respond. It takes two seconds for the uploaded to edit the image and add in the required link.

The "please provide..." automated message needs to be reworded. It is rather lacking. At least include the wiki link explaining the policy.

4anglemark
Sep 19, 2010, 9:49am Top

Applause. I've been irritated by LT's excessive and unnecessary policing this issue since I joined. The outlined change is exactly the right way to go, for the reasons you give, Tim.

5EveleenM
Sep 19, 2010, 9:58am Top

I've voted yes.

I think your point 3 is what influenced me most: if you're committed to monitoring all photos, and someone gets around that, then you're liable in a way you wouldn't be if the policy was only respond to takedown notices.

6PhaedraB
Sep 19, 2010, 10:34am Top

I've voted yes.

As an author and friend of many authors, it's really hard to sort out what pictures belong to whom for what, and in the meantime, some wonderful authors wind up with no pictures on their profiles. A publicity photo is just that, as far as most of us (writers) are concerned. There are comparatively few authors of the stature of Shel Silverstein, who have estates large enough to make it worth their getting testy about it, and if they do, Tim can just take it down.

The law is the law, certainly, but as another author has said, "The law is an ass."

7lilithcat
Sep 19, 2010, 10:37am Top

I'm ambivalent.

Granted, as one of the people who monitors image uploading a lot, it will a) save me time, and b) stop some of the nasty comments I get from people who can't be bothered to read the site policy before uploading images. I also have long felt that "fair use" should be a justification that we can use.

However, I do think that, if the policy is to be changed, it becomes even more necessary to stress to uploaders, at the beginning of the process, the importance of giving proper credit to the creator of the image, where known. I've never understood why, when an image is licensed under a Creative Commons Attribution license, people find it so damn difficult to enter in the credit line, "Photo by Joe Schmo". As someone who copyrights her photos, that pisses me off.

8klarusu
Sep 19, 2010, 10:46am Top

I voted 'Yes', not because I don't appreciate everything that the users who monitor these pictures have done up to now, but because I agree with most of the reasoning behind Tim's list above. That said, I agree with lilithcat, it does become more important to be absolutely explicit about the norms for crediting source or it may risk becoming a free-for-all at some later date.

9gwernin
Edited: Sep 22, 2010, 12:47am Top

This message has been deleted by its author.

10kevmalone
Sep 19, 2010, 3:10pm Top

Voted yes,

and >6 PhaedraB:? "a ass"

“If the law supposes that,” said Mr. Bumble,… “the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience.”

11theapparatus
Sep 19, 2010, 4:22pm Top

Just to throw this out there as a counter argument since Tim mentions that DMCA is the way most folks go, Wikipedia follows the same policy as LT currently and actively removes links that link to copyrighted material. An example of this is Youtube and how they don;t normally link to videos on youtube that may be copyrighted:

http://en.wikipedia.org/wiki/Talk:A_Few_Good_Men_%28play%29#YouTube_links

But to be honest, I have a Mythbusters video on my own blog that I've added links to on wikipedia. I;m too ethical and feel a need to mention that.

12FicusFan
Sep 19, 2010, 5:31pm Top

I voted yes, because if there is a problem someone official will contact Tim, and I am sure he will take it down.

Now, LT is just working against itself.

13lilithcat
Edited: Sep 19, 2010, 5:45pm Top

>> 12

if there is a problem someone official will contact Tim

That's assuming they learn about it. Joe Schmo, who goes to a lot of author events and posts those images on, say Flickr, as "©All Rights Reserved" or under an Attribution license, will probably not discover that someone on LT has uploaded the image in violation of his copyright/license. It's not as though the uploader is likely to tell him.

Frankly, rather than LT saying, "We'll go ahead and let you violate copyright until we're caught", I'd like LT to say what I believe to be true: that the "fair use" exception to copyright applies to author/venue images here, but also say that uploaders are expected to properly credit the photographer/copyright holder.

The more I think about it, the less I like the current proposal. I'm changing my vote to "no".

14lilithcat
Edited: Sep 19, 2010, 5:44pm Top

I have no idea why that posted twice.

15theapparatus
Sep 19, 2010, 5:46pm Top

I wouldnt mind fair use for images under 150 pixels. There's some US case law that supports that. Not specifically saying that 150 pixels is allowed under fair use but cases where images of 150 pixels were allowed as being fair use. (Does that make sense?)

16mujahid7ia
Sep 19, 2010, 5:55pm Top

>13 lilithcat: I voted yes, but lilithcat's argument really does make sense... I'm starting to doubt the proposed policy

17r.orrison
Edited: Sep 19, 2010, 6:04pm Top

I've voted yes, but also want to agree with the postings that say the attribution field should be above the upload button, the light box should be larger, and the instructions should make it more explicit that attribution and source references are expected.

Edited to add: possibly even to the point that something needs to be entered in those fields before you can upload a photo.

18staffordcastle
Sep 19, 2010, 6:24pm Top

Agree that posting an attribution is not too much to ask, and that the field should be above the button.

19timspalding
Edited: Sep 19, 2010, 6:36pm Top

I have no idea why that posted twice.

The site so nice, it posts twice!

Frankly, rather than LT saying, "We'll go ahead and let you violate copyright until we're caught", I'd like LT to say what I believe to be true: that the "fair use" exception to copyright applies to author/venue images here, but also say that uploaders are expected to properly credit the photographer/copyright holder.

No. I'm not okay with this. I believe it to be true in some circumstances. But I am not a lawyer, and even if I were I suspect the answer would be equivocal and situational. By stating "we think X is okay" we are putting ourselves at legal risk.

Think of the situation on YouTube. Much of it is clearly not okay--it's straight-up copyright violation.(1) At the other end, there are lots of slam-dunk fair-use videos--works of criticsm and commentary that use only as much as they need, do not dimish the secondary value of the work, etc. Then there's an enormous amount of in-between stuff. It's not in YouTube's legal interest to fomulate rules about what's appropriate and what's not appropriate, except as already exist in the law--for that is the ultimate arbiter.

I wouldnt mind fair use for images under 150 pixels. There's some US case law that supports that. Not specifically saying that 150 pixels is allowed under fair use but cases where images of 150 pixels were allowed as being fair use. (Does that make sense?)

To be clear, I am not arguing that we do this because LibraryThing's use of the images is fair use. Fair use can, perhaps, be a defense for some images. More often, perhaps, it would be permitted use. But that's not what I'm proposing.

What I'm proposing is to do as other sites to—to have a policy of prohibiting the upload of copyrighted images without permission, but not to empower members to police it, except through the DMCA takedown process. What is and isn't infringement by users is not, ultimately, something LibraryThing the site should be getting in the middle of, except to prohibit it generally and respond to specific, DMCA-compliant complaints.

(1) Much of this has been retroactively okayed by studios and labels, who now get a percent of ads run against their content, but that's another story. Needless to say, they did this with a gun to their head. Labels in particular are now willing to sanction anything that wrings some value from their property.

20Aerrin99
Sep 19, 2010, 10:38pm Top

I voted yes. 3) is actually a huge issue and one I strongly agree with. Policing copyright on your site puts you in a lot more danger, ironically, than having a lot of non-policed copyrighted material on your site.

21reading_fox
Sep 20, 2010, 5:48am Top

I'm a no. I like the original policy, I like LT's willingness to stand out from the crowds and be pround of how it chooses to operate. I'm not the fussed about pictures anyway.

22jseger9000
Sep 20, 2010, 3:43pm Top

I voted 'yes', mainly due to points #2, #3 and a little bit of #4 (the Shel Silverstein case).

At the very least this should be the policy for venue images, where the photos in question are most likely taken from the company website or some other promotional website.

Author photos might be a little different. I can see lilithcat's point on that one (though I still voted yes!).

23brightcopy
Sep 20, 2010, 3:49pm Top

So, can we go ahead and call this vote already? It's a bit of a landslide.

24SimonW11
Sep 20, 2010, 4:19pm Top

what protection does the DMCA offer to Non-American copyright holders?

25brightcopy
Sep 20, 2010, 4:50pm Top

The US tends to have loads of entangling copyright treaties with other countries that basically says "if you enforce our copyrights, we will enforce yours." As such, other countries do likewise.

Google's page on how they handle DMCA violation reports might be helpful:

http://www.google.com/video_dmca.html

The one thing I don't like about the DMCA is that companies tend to abuse it, spamming violation reports to the Content-Displaying website for things they often don't have the copyrights for. Then the Content-Displaying website won't reinstate it even if the people who posted it file a counter notification. At least with LT, I have more faith that they'll handle it the "right" way instead of the "safe" way.

26timspalding
Sep 20, 2010, 5:45pm Top

The one thing I don't like about the DMCA is that companies tend to abuse it, spamming violation reports to the Content-Displaying website for things they often don't have the copyrights for

We do, however, already reply to DMCA complaints. To my knowledge, we have never received one. Indeed, I don't think we've ever received even an informal one.

28brightcopy
Sep 20, 2010, 6:13pm Top

I think you're just too low profile to make the radar, honestly. None of your content is worth the big bucks. Author photos? Book covers? Pshaw. LT's value comes in almost everything else it adds. On the other hand, some place like YouTube adds very little real value other than as a hosting site.

Of course, it's slightly possible that you'll get some once your self-imposed copyright enforcement is removed. But I'd still say it's unlikely.

Now, that has nothing to do with whether or not copyrights are being violated (mostly on author photos, as the whole book cover case is arguably fair use). It's just about where the money is.

29brightcopy
Sep 20, 2010, 6:16pm Top

27> Yes, the Berne Convention is a big part of it. However, it's not all there is to it. For example:

http://en.wikipedia.org/wiki/List_of_parties_to_international_copyright_agreemen...

30timspalding
Sep 20, 2010, 6:53pm Top

>28 brightcopy:

That's exactly right. None of this would ever come up. That's another reason for treating this normally, not like cryptonite.

31jjmcgaffey
Sep 21, 2010, 9:17am Top

Wasn't the 100 Books Challenge a DMCA? Or was that trademark, rather than copyright?

32theapparatus
Edited: Sep 21, 2010, 9:29am Top

Looks to be trademark: http://www.techdirt.com/articles/20100106/1040417635.shtml

edit: And as a host I get the occasional DMCA for trademarks as well. Never pointed it out that there's a difference.

33infiniteletters
Edited: Sep 21, 2010, 7:10pm Top

What type of complaint was the 100 challenge book thing?

ETA: apparently I don't refresh.

34infiniteletters
Edited: Sep 21, 2010, 7:11pm Top

I do think it would be nice to keep author flagging for purposes of "this is not an author" photos. Of course, I'd like the same thing for covers.

35lorax
Sep 21, 2010, 7:21pm Top

34>

I'll trade copyright-violation author photo flagging for "This is not a photo of the author in question / this is not a cover of the book in question" flagging any day.

36jjwilson61
Edited: Sep 21, 2010, 7:47pm Top

33> There was a group called something like 100 Book Challenge and some group that had trademarked the same phrase asked Tim to change it.

ETA: Well, actually they demanded.

37KingRat
Sep 21, 2010, 8:28pm Top

I voted no.

Here's why: There's no good way to find images on LibraryThing that violate copyright if I am the owner. Big media companies have the means to search out their images and issue take down notices as they do with Youtube. I do not. This screws over the little guy (me) to help LibraryThing's bottom line (more images for users!).

Also, to the writer in #9, you've just told me that my copyright doesn't matter very much while you think yours does. Maybe I'll go stick your work on the internet somewhere and see how you like it. I'd bet not very much.

38timspalding
Sep 21, 2010, 9:21pm Top

>37 KingRat:

Do you think it's common that an author or venue photo would be created and available on the web and not be produced for and intended for promotional use? A good comparison would be short summaries of a book online. 95% of them come from the publisher, or the author. 5% come from others. Does this change the dynamic, or not?

39lilithcat
Sep 21, 2010, 9:25pm Top

> 38

Do you think it's common that an author or venue photo would be created and available on the web and not be produced for and intended for promotional use?

I think that's true if we are considering images on publishers' and authors' sites. But I wouldn't think it true of John Doe's photos that he takes at author readings and posts on Flickr marked "©All Rights Reserved".

So if you do change your policy, I, for one, would be disinclined to use the latter, but would likely have no hesitation in using the former.

40KingRat
Sep 21, 2010, 9:42pm Top

What Lilithcat said in her first paragraph.

I mark all the photos that I take as CC Non-commercial. If an author grabbed my photo and used it to create a flyer for his/her author reading/book/event/whatever, I'd ask for $5. They should be hiring their own photographers.

I put mine up for personal use. Non-commercial bloggers. That sort of thing. Not for general promotional use.

41gwernin
Sep 21, 2010, 9:47pm Top

37: I don't like your threats. I do, in fact, give many electronic copies of my books away to reviewers (see my currently on-going Member Giveaway); I also post many of my own photos on Flickr with Creative Commons copyrights (free use-attribution-no derivs). Anything on the internet -- or off -- can be pirated if someone really wants to. As an independent publisher I'm hardly a "big guy", so I can't pursue you. If you want to make an jerk of yourself, it's your karma.

I voted "yes" because I did, as I said, find Tim's arguments persuasive, and because LibraryThing is important to me. Can you say the same?

42timspalding
Sep 21, 2010, 9:56pm Top

>39 lilithcat:

No, I agree. I think we should continue to insist that users obey copyright, and credit everyone--something other sites often don't even allow.

Let's try to keep this smiley. I do not for a minute doubt Mr. Rat wants the best for LibraryThing.

43KingRat
Sep 21, 2010, 9:58pm Top

I can say it. I've been a member for years. I've uploaded thousands of public domain and creative commons photos as well as photos I've taken. I've got nearly 10,000 contributions to Common Knowledge and over a thousand works and authors combine. All without a penny of recompense or little to promote my own work. LT is obviously fairly important to me.

You did not provide any information to show that you care about my photo copyrights as much as you care about yours. You are the one who said you cared about your own copyrights in the same paragraph you promoted Tim's arguments that photo copyrights should be ignored unless he's notified. Tim's proposed policy, while well within standard practice and the current DMCA legal framework, provide less protection to small photographers than the previous policy, in the interests of more protection for LT. That may persuasive for good business sense, but you clearly don't like that attitude when it's applied to your work.

44gwernin
Sep 21, 2010, 10:01pm Top

This message has been deleted by its author.

45timspalding
Sep 21, 2010, 10:03pm Top

>43 KingRat:

Can you suggest a way to improve my suggestion other than providing members with the ability and incentive to remove each others' photos?

Can anyone else? Some ideas:

1. If an image is taken from the web (ie., grabbed), remember where it was grabbed from and display it somewhere with the picture.
2. Strong language, as you suggest.
3. A better page showing uploads?

46KingRat
Sep 21, 2010, 10:21pm Top

1 is a good idea.

Along with #3 would be a way to look at a users contributions (it was in the old system), so that if one was found, other ones uploaded by that user could be found.

For Flickr photos, retrieving the image through the API rather than the URL so that the proper account can be attributed and the license can be retrieved. I.e., use the image URL to get the image ID and then use the API to get it instead of the URL itself.

Better keywording of the author images and related pages so that they get Google indexed better. See if there's an effective way for TinEye to see the photos.

I think most people will ignore the strong language, though I wouldn't recommend removing it.

47KingRat
Sep 21, 2010, 10:26pm Top

Off-topic, but please don't flag on my behalf. (Though I spose if it's the principle of the thing, go ahead then.)

48gwernin
Sep 22, 2010, 12:16am Top

This message has been deleted by its author.

49brightcopy
Sep 22, 2010, 12:24am Top

The rules on personal attacks have some fuzzy edges. This really isn't one of them.

50gwernin
Sep 22, 2010, 12:28am Top

This message has been deleted by its author.

51gwernin
Sep 22, 2010, 1:03am Top

Right. So jerks really can pick on people here as much as they like. Considering other discussions, I really shouldn't have been surprised.

52theapparatus
Sep 22, 2010, 9:40am Top

Anyway...

>"credit everyone"

That's an issue currently as most of the uploaded images I see have no credit on them. I used to flag those but 1) Most seemed to be voted down and 2) many were author's images and I got "nasty" comments on my profile.

>Do you think it's common that an author or venue photo would be created and available on the web and not be produced for and intended for promotional use?

Yes to some extent. I get DMCAs occasionally when someone has copied an image onto their site from elsewhere. Had one last year where a college student had copied their department's staffs' images to their blog and the department requested that the images be taken down since they were only to be used on their site. Of course it didn't help that there wasn't any copyright on the college site and the department could have cared less that it wasn't there. That was fun. Was was worse I had to contact the university's legal department myself to get the department request in order. (And to get them to shut up about it.)

Flickr's moot actually. I've contacted them a number of times as the ABC websites here in the US use pictures from that site all the time in their silly slideshows without credit. Flickr had as stated that they won't go after them nor will they contact their user who had the image used on my behalf. (ie They turn a blind eye to copyright infringement.)

As an aside, I think the badge counter of image reporting is broken. I know I've flagged more than 10 and haven't seen it appear yet,

53nolly
Sep 22, 2010, 10:26am Top

Seems to me like making a source / attribution field mandatory would be a good idea with either policy.

54theapparatus
Edited: Sep 22, 2010, 10:41am Top

And putting them above the Submit button. :)

edit: Just to throw this out, here's one of them "Give a link back for credit" examples:

http://www.librarything.com/pic/205420

Considering that the page linked to contains a copyright statement as well as a "Site designed by..." bit meaning it was professionally done, I'm real iffy on allowing that.

55brightcopy
Sep 22, 2010, 11:16am Top

54> Isn't the entire LT library listing's purpose to "give a link back"? It could be a violation of the copyright of the photographer, but I don't think it would be on the basis of lack of linking to the site.

Just as another datapoint, doing a google image for "the david library of the american revolution" shows that image as the second hit. Should they have to get permission or include a credit line below the photo? It wold surely make such a service much less feasible.

Copyright only exists as an artificial creation of the state. It hasn't always existed. It's a gift given to content creators to help encourage them to create content. Society has determined that giving them these artificial rights is a good trade-off. But that isn't carte blanche. There are limitations on it and these are generally called "fair use" (both in the strict legal sense and in the more loose colloquial sense).

Now, we could have a HUGE discussion about fair use and how it applies here and there. But there's a fairly good writeup (well, I have to assume it's good, I suppose, if I don't do the research myself and am not an expert on the subject):
http://en.wikipedia.org/wiki/Fair_use

What's interesting is that there's a case that's almost exactly applicable and might have been the one you were referring to in #15.

http://en.wikipedia.org/wiki/Kelly_v._Arriba_Soft_Corporation

In it, they ruled that it was okay for Arriba to include thumbnails of the original photos, even though it was complicated further by Arriba using inline links and putting the full image in a frame on Arriba's website.

To wrap it up, here's what I found the most interesting bits. It involves the weighing of these tradeoffs:


Purpose and character of the use

The use was found to be commercial and transformative, not of the same type as the original work, because the images were not being sold as pictures but were to facilitate the identification of the images in the search engine: "This first factor weighs in favor of Arriba's due to the public benefit of the search engine and the minimal loss of integrity to Kelly’s images."

Nature of the copyrighted work.

The pictures are a published creative work available on the internet. A creative work favors a finding of infringement. As a published work, the use is more likely to be fair: "This factor weighs only slightly in favor of Kelly."

Amount and substantiality of portion used

The court found this factor to be neutral: "Copying an entire work militates against a finding of fair use ... If the secondary user only copies as much as is necessary for his or her intended use, then this factor will not weigh against him or her ... This factor neither weighs for nor against either party ... It was necessary for Arriba to copy the entire image to allow users to recognize the image and decide whether to pursue more information/"

Effect of the use upon the potential market for or value of the copyrighted work

This requires considering the effect if the actions were widespread, not solely the effect of the particular user. A transformative work is less likely to have an adverse effect than one which merely supersedes the original: "Arriba’s use of Kelly’s images in its thumbnails does not harm the market for Kelly’s images or the value of his images". The thumbnails would guide people to Kelly's work rather than away from it and the size of the thumbnails makes using them instead of the original unattractive.

Result of the analysis

"Having considered the four fair use factors and found that two weigh in favor of Arriba, one is neutral, and one weighs slightly in favor of Kelly, we conclude that Arriba’s use of Kelly’s images as thumbnails in its search engine is a fair use."

56timspalding
Edited: Sep 22, 2010, 12:08pm Top

Copyright only exists as an artificial creation of the state

I disagree, and putting on my political philosophy that I say this: Copyright works morally for the same reason other property does. Just as one acquires property by mixing your labor with it--ploughing a field, for example, or turning a rock into a axe--you acquire moral rights over a novel by writing it. Just what those rights are is unclear. It's certainly a different sort of moral claim than one's right to own a field or an axe. Personally, I think copyright should be much shorter--more like what it was in the 18th and 19th century. But I don't agree that copyright is essentially an arbitrary, morally groundless creation of the state. Some protection for "products of the brain" agrees with our sense of right and wrong, not just legal and illegal.

Leaving that aside!

So far, I'm agreed on the following measures in addition to the change:

1. Moving the button to the bottom.
2. Requiring either the credit or copyright fields to have something in them.
3. Preserving the URL that it was grabbed from, and having a link to it somewhere.

Anything else?

57lucien
Sep 22, 2010, 12:18pm Top

>56 timspalding:.

Doesn't 2 (tracking and storing rights to images) make it seem like you are monitoring for copyright violations, which you wanted to avoid as per 3 in your opening post?

58lorax
Sep 22, 2010, 12:54pm Top

Copyright works morally for the same reason other property does. Just as one acquires property by mixing your labor with it--ploughing a field, for example, or turning a rock into a axe--you acquire moral rights over a novel by writing it.

It could be argued, however, that absent intervention of some sort of state or another you relinquish those rights by publishing your novel -- that once it's out there in the public sphere (not to be confused with the public domain), you've lost control over who can do things with it -- unless you have the government to back you up. The moral right may well still exist, but the author can't do anything on her own to protect that right.

2. Requiring either the credit or copyright fields to have something in them.

If the fields contain data that is incorrect or meaningless, is there a recourse? It's technically trivial to require that a field be fillled out; preventing someone from filling in "fish fish fish" in the copyright field is a bit harder.

59Nicole_VanK
Sep 22, 2010, 1:05pm Top

The moral right may well still exist, but the author can't do anything on her own to protect that right.

True, but the same goes for a lot of other rights. For example: other than that (s)he may be a nice person - what's keeping your next door neighbor from killing you, if it weren't for some sort of government protection?

60brightcopy
Edited: Sep 22, 2010, 1:10pm Top

56> Just to give you context of where I'm coming from, copyright is "artificial" in the same way REAL property rights are artificial or the right to free speech is artificial. That's has nothing to do with whether it is "arbitrary" or "morally groundless." You shouldn't confuse my statement about artificiality with any opinions along those lines.

I'm just pointing out that these are things that we, as a society, have created for ourselves as part of the whole "civilization" thing. They aren't tangible, natural features intrinsic to objects. They're ideas and rules.

Hope that doesn't further derail things. Just trying to put it into perspective, especially in terms of fair use. I think LT runs relatively little risk in this area due to the way it's using these copyrighted images. Kelly v. Arriba seems to back that up.

61readafew
Sep 22, 2010, 1:13pm Top

59 > sorry, that one falls flat, my neighbor doesn't kill me because the government said so, neither does the government protect me from murder, it punishes those who commit murder AFTER the fact.

62brightcopy
Edited: Sep 22, 2010, 1:16pm Top

61> Actually, I'm pretty sure if your neighbor attempts to kill you and the government puts him in prison for life, they DO prevent him from murdering you. You can quibble about the wording, but it's still the same thing.

ETA: Plus there's people who WOULD murder you, if not for the penalties the government would impose on them after the fact. Yet another way they prevent a murder.

63PhaedraB
Sep 22, 2010, 1:16pm Top

Re: the rights of the photographer, many publicity photos are "work for hire" which means the rights belong to the person who hired the photographer.

To make it more complicated, some commercial photographers do work for hire with a mix of rights transferred; for example, they may grant the right to print the work but not use it on the web similar to writers who give first rights to a magazine, but then have the rights reverted to them for further publication.

The ease of putting images on the web is parallel to the change that happened when it became easy to photocopy print works. Just because it can be done easily, and that everyone does it, does not mean anything goes. But it's not easy to figure out what's ok and what's not. *sigh*

64brightcopy
Sep 22, 2010, 1:22pm Top

63> Similar arguments could be made when the VCR (or Betamax) came out. Just because you COULD tape a show off a broadcast doesn't mean anything goes. But it also doesn't mean nothing goes. That's another case where the law had to catch up to technology, and it didn't do that by simply stamping it out. It realized that some uses of the technology were okay, even if they did technically violate a previous understanding of copyright. Of course, after that decision those uses no longer violated copyright because those decisions modified it.

Copyright is about a negotiation between the artist and society. It continues to evolve as society does. To think that somehow all the same restrictions should be placed on the web as prior media is really missing that point. As in the case of Kelly v. Arriba, new rules were made since a more strict application would have been onerous to society.

65LisatheLibrarian
Sep 22, 2010, 1:22pm Top

Tentatively, I vote No. From a user point of view, I think that the current procedure seems to be working. Tim admits in >30 timspalding: that he is probably still too small to get a lot of attention. His reasons for changing are all well-reasoned ones, but LT culture might change (do we have culture? I think so), and maybe not for the better.

However, even if he doesn't change the policy, maybe make a copyright statement required when uploading photos would be good. I noticed that when I uploaded my own photo (I own & took it myself), I was not required to state that I owned it. There is no alt tag or any other copyright info on my profile as a result.

66Nicole_VanK
Sep 22, 2010, 1:25pm Top

> 61: Okay, I admit I was going for the hyperbole. But the fact that a murderer knows (s)he'll probably be punished by government has some preventive effect. Much the same goes for copyright and related intellectual property rights. People may still pirate, plagiarize, etc. - but the knowledge of the fact they can be prosecuted has some effect.

67brightcopy
Sep 22, 2010, 3:00pm Top

I'd like to point out that we all seem to be perfectly happy to "steal" artists work for the book covers. Yet that's another one of those cases where, on the face of it, it's copyright infringement. But we decided it was worth it due to how much it would suck to not be able to display little thumbnails of the books we own. And really, it's not actually financially hurting anyone. That's what fair use is all about. We don't seem to give a rip if it hurts the cover artists' feelings because they never agreed to have their work used in that format, do we?

68theapparatus
Sep 22, 2010, 3:35pm Top

Book covers are covered under fair use. Like taking a picture of a car when you're trying to sell it. The design of a car is actually owned by the manufacturer.

Funny, a quick google pulls this up and it's using LT to raise the point:

http://blog.librarylaw.com/librarylaw/2008/08/book-jackets--.html

Plus then you're using a thumbnail and there's case law that says a thumbnail is allowed, also under fair use.

Insert standard "I;m not an attorney" clause here.

Now having said that, I have received DMCAs on covers before. My attorney says that we would have a case but in all the times this has occurred, the client has just said it wasn't worth the trouble and pulled the cover. Off of my head, they were all thumbnails with one exception. That exception was actually on my own blog where I had taken a thumbnail and mistakenly resized it to be full size. Looked like crap if you asked me.

Those have all come from a single publisher which i will not name here. Really all it did was tick off the clients who will no longer read works by that publisher.

69Collectorator
Sep 22, 2010, 4:02pm Top

Back to the topic:

Lorax said: "If the fields contain data that is incorrect or meaningless, is there a recourse? It's technically trivial to require that a field be fillled out; preventing someone from filling in "fish fish fish" in the copyright field is a bit harder."

70brightcopy
Sep 22, 2010, 4:22pm Top

68> Yes, it's fair use. And as I've shown above, it sounds like thumbnails of pictures (like authors and venues, in this case), are also fair use. Does that make using it without the artist's (or copyright owner's) permission and potentially against their wishes any less moral? That's my point, in a nutshell. Yes, they may not like that their copyrights don't give them 100% control of their creations, but that's how we, as a society, have structured our grant of copyright to them.

That doesn't keep people from suing, of course. It just keeps them from winning after you've went through all the time and expense of fighting them, if they don't back down after sending you threatening letters.

71KingRat
Sep 22, 2010, 4:41pm Top

FYI, LT doesn't just have thumbnails of these photos.

72brightcopy
Sep 22, 2010, 5:08pm Top

71> Well, here's where I think a reasonable improvement exists, in terms of complying with copyrights and giving some respect to artists; photos for authors and venues should be restricted in size to a more thumbnail-ish size. I'm thinking more along the lines of the ones being shown on work/venue pages.

73brightcopy
Sep 22, 2010, 5:11pm Top

72> Furthermore, you could possibly keep the existing system in place, but allow for the full sized image only when the full copyright information has been entered, including the attribution. Take out the copyright flagging we have now, though, due to the DMCA concerns Tim outlined.

This is once again one of those areas where you have to take a step back and say "okay, but what's the real effect here?" How often do you actually click through to full sized author and venue photos? In my opinion, it's a fairly minor part of the system for the majority of the users. So really, the thumbnail version is what is actually being used, and as shown above it's highly likely that should fall under fair use.

74gmillar
Sep 22, 2010, 9:08pm Top

Phew, That is a lot of reading.
As a truck-driving, Ping-driving, book lover, I really like to look at the author pics once in a while to see if I can get a feel for the brain that produced the work I had just enjoyed. I am severely disappointed when there is no picture there.
Will I write something for publication and copyright one day? Maybe.
Do I take photographs of people who might one day write and publish something? Maybe.
If either event occurs, I'll put up my picture on LibraryThing. My grand daughter will be delighted and I won't care if she "grabs" my picture to show her friends. They can show their friends too!

I vote for Tim to do what he thinks is right and useful for the majority of his members - people like me. He's done a bang-up job so far.
I think we in America suffer in many ways because we govern for the squeaky wheel. So, here's an idea: Count all the members who don't post here as "Yes" votes. We'll get the change.

75K.J.
Sep 23, 2010, 1:09am Top

I'm with Tim on this one. If we want LT to be around for the long haul then admin should take precautions such as this. Following the DMCA is just good sense.

76theapparatus
Edited: Sep 23, 2010, 7:40am Top

>75 K.J.:. I think you may be misunderstanding this a bit. Right now, I;m sure Tim would follow a DMCA request if one was presented. (He about says that up there.) The current policy goes beyond that and has us being proactive on copyright of images. Tim's proposal is to drop that proactive stance and take a reactive one, only dealing with an issue when a DMCA is received.

Having seen K.J.'s statement, I wonder if maybe the question asked up there is also misunderstood and folks think the current proactive stance isn't in place.

77rebeccanyc
Sep 23, 2010, 7:53am Top

I am grateful to all the people who upload photos and who monitor copyright, as I am their beneficiary without lifting my own finger to do the work. Thus, although I have read everything above, I don't feel I am as qualified to vote as those more deeply involved in this. However, I find Tim's reason #3 compelling.

78lucien
Sep 23, 2010, 9:16am Top

>76 theapparatus: But isn't Tim's point in 3 in the original post that the current system of checking copyright may jeopardize LibraryThing's safe harbor status under the DCMA. So it's not a matter of following the DCMA plus doing more - it's that the doing more may conflict with the protections the DCMA offers the site.

I've no idea if that's true from a legal standpoint of course, only how I read the original post. It's not the only reason I voted yes.

79theapparatus
Sep 23, 2010, 9:26am Top

I realize that but from reading comment 75 there, it sounded like K.J. was thinking "DMCA or nothing."

80timspalding
Sep 23, 2010, 10:25am Top

The big problem with the DMCA is that it incentivizes sites to take something down when a DMCA request is filed, and not risk acquiring a serious legal risk it doesn't need to have. As a result, I suspect we would take down any image named in a DMCA that seemed remotely credible to us—not written in crayon, for example. We can, of course, post any such requests, and ask the poster or other members for help in determining if we should put it back up again. But that's about the best we could do. Again, however, we've never ahd one.

81KingRat
Sep 23, 2010, 12:47pm Top

There's the whole DMCA counter-notice for that part. If you put the images back up without the counter-notice, you run the risk of being included on the lawsuit. The counter-notice essentially tells folks that the user who posted the photo is willing to be the lawsuit target.

Mind you, if LT notified me that a photo i'd posted was subject of a DMCA takedown notice, I wouldn't counter-notice. I'd go further the other way. I'd request ALL my photos be removed. No way would I be willing to take a lawsuit for LT photo feature. My own blog perhaps. But not for this.

82brightcopy
Sep 23, 2010, 1:00pm Top

81> Yup. And that's one big sticking point for posting images on a site like this. It's almost never going to be worth it for the original poster to say "I'm so sure about the copyright that you go ahead and sue me if you think it's worth it!"

But that's going to be the case with ANY system for the images here that uses the full sized images. Doesn't matter if we have voting or no voting, administration intervention or no administration intervention. They'll get DMCAs either way, and they'll take down the content either way, and they'll provide the poster with the ability to counter-notice either way.

The only way I can think of changing that math is the route I suggested above where LT only shows the small thumbnail. Still might not prevent them from being the target of a suit, but it might make it a lot easier (less expensive) to defend against it. Of course, one area that seems a little fuzzy is if there's no link to the original photo/site. The Kelly v. Arriba case might actually have gone another way if Arriba was simply appropriating the thumbnails and never directed people to the sites with the full images (and, theoretically, the full credit). The key part being "The thumbnails would guide people to Kelly's work rather than away from it and the size of the thumbnails makes using them instead of the original unattractive."

So if someone scans an author photo from a book jacket, uploads it and adds it (thumbnail or otherwise) to LT, there's really nothing there that's guiding people to the original work of the copyright owner, assuming it is the artist and not the publishing house.

83theapparatus
Sep 24, 2010, 10:24am Top

Just to throw this out there, Wikipedia is going through a problem with copyright right now:

en.wikipedia.org/wiki/Wikipedia:Contributor_copyright_investigations/Darius_Dhlomo

This is what I'm afraid things will wind up at.

Link broken on purpose as per wikipedia's request.

84justjim
Sep 24, 2010, 11:10am Top

Whew! That Darius was a busy chap.

85brightcopy
Sep 24, 2010, 11:22am Top

84> Turns out when you just copy and paste, your efficiency goes through the roof.

86timspalding
Edited: Sep 24, 2010, 11:38am Top

Okay, this topic may, of course, remain open, but I am implementing the legal change--in time for a blog post Sonya is writing about adding libraries.

The technical changes I've implemented are:

1. Button at bottom
2. Wording changes

I will shortly implement:

1. Copyright line being require technically, not just verbally.
2. URL being stored

Thank you all for your time and attention, and for the passion and good sense you showed.

87SqueakyChu
Edited: Sep 24, 2010, 3:13pm Top

If I post multiple pictures and credit each photographer by name from Creative Commons, Attribution license, do I have to link each of the photos back to its original photo, or is one link back to Flickr, Creative Commons Attribution enough?

88theapparatus
Sep 24, 2010, 1:55pm Top

>Creative Commons, Attribution license

CC says it's up to the photographer as how they want credit. Considering most of them don't remember to mention that, I link back to the specific page where it came from.

Look at it this way. If you took a picture and saw someone use it, would you want credit for it or your ISP?

89lilithcat
Sep 24, 2010, 3:01pm Top

> 88

CC says it's up to the photographer as how they want credit. Considering most of them don't remember to mention that

On Flickr, at least, there's no real way to say how you want it, so what I generally do is to enter the user's Flickr screen name in the credit/copyright line, and link to the page. It would read something like "Photo by {screen name} at Flickr", and "Flickr" would be a link. In the copyright line, I'd put "Creative Commons Attribution License".

90timspalding
Sep 24, 2010, 3:07pm Top

I abbreviate it to CC-A, or something. That's quick and easy.

91christiguc
Sep 24, 2010, 3:11pm Top

I think the common way to abbreviate it is cc-by (for attribution) and -sa (for share-alike), -nd (for no derivatives), and -nc (for non-commercial).

So, for example, you can have cc-by-nd or cc-by-nc-sa, etc.

92SqueakyChu
Sep 24, 2010, 3:12pm Top

If you took a picture and saw someone use it, would you want credit for it or your ISP?

You're right. As soon as I have extra time, I'll go back and fix them all.

93SqueakyChu
Sep 24, 2010, 3:15pm Top

Is the link back absolutely necessary?

94timspalding
Sep 24, 2010, 3:16pm Top

No. I tend to include the link in the copyright, not credits.

95theapparatus
Sep 24, 2010, 10:08pm Top

Throwing out an example image that I just did to show the way I do it:

http://www.librarything.com/pic/205983

So when does the change in policy go into effect?

96SqueakyChu
Edited: Sep 24, 2010, 11:49pm Top

My example is different in that several photos are embedded in different posts of a thead rather than just be a single venue picture in LT Local. I think these pictures should be be attributed to their photographers as well. See message #1, the pictures in the following posts, and message #20. What else should I do, or what should I do differently?

ETA: I just went back and direct-linked all except one (which I'll try to do later this week. The access was not available tonight).

97timspalding
Sep 25, 2010, 12:09am Top

So when does the change in policy go into effect?

In effect now. I'm changing wording tonight.

98justjim
Sep 25, 2010, 12:23am Top

Does this mean that the "Local Books" iPhone app will get venue photos back or is that not related?

99timspalding
Sep 25, 2010, 12:36am Top

Not related, but thanks for reminding me. I'll take a look at how it's requesting them.

100justjim
Sep 25, 2010, 12:49am Top

Thanks.

101theapparatus
Edited: Sep 25, 2010, 7:48am Top

Tim, are we sure the change has occurred as I;m seeing images without the required copyright/credit field:

http://www.librarything.com/pic/206034

edit: I noticed that the upload box last night had the new layout with the "required" bit. That's why I'm pointing this out. This was uploaded after I did those venue pictures.

102PaulFoley
Sep 25, 2010, 8:49am Top

55: Society has determined that giving them these artificial rights is a good trade-off.

Really? When did "Society" decide that? Was there a meeting, and I missed it?

103PaulFoley
Edited: Sep 25, 2010, 8:51am Top

56: Copyright works morally for the same reason other property does.

It really doesn't. Against Intellectual Property (http://mises.org/books/against.pdf)

104timspalding
Sep 25, 2010, 11:45am Top

>101 theapparatus:

Not yet implemented.

I did, however, just implement that it catches and displays the URL you upload from. Here's the first example:

http://www.librarything.com/pic/206068

It says "Grabbed from here."

This only shows on authors and venues, and only if you're signed in. It's also got a "nofollow" on the link. With luck, that deters people from trying to use it for SEO points.

105theapparatus
Sep 25, 2010, 11:54am Top

Hmm, kind of torn on the "grabbed from..." bit. I would think the landing page would be a better idea. That's the page that has the credit and copyright information. The url on that page is just to the image.

Not sure if that would be doable. At least with flickr, there's no way to determine that. I think wikipedia (the software, not the site) has a method of going that in the http headers.

106timspalding
Sep 25, 2010, 12:04pm Top

Right. There's no good way to do it. We could tell people to hit the HTML page, and then we'd fetch ALL the images, etc.

The point is, though, it preserves some trace for the person seeking to track down where there are images are being taken from.

107brightcopy
Sep 25, 2010, 2:12pm Top

102>Really? When did "Society" decide that? Was there a meeting, and I missed it?

We stopped inviting you to the meetings. You know why.

108timspalding
Sep 25, 2010, 2:27pm Top

He kept "privatizing" the potato chips.

109brightcopy
Sep 25, 2010, 2:45pm Top

And declaring that asking everyone to chip in for beer was communism.

110kevmalone
Sep 25, 2010, 3:15pm Top

Nah, "telling" would be communism. "Asking" is socialism.

111K.J.
Edited: Sep 26, 2010, 11:54am Top

76> There is no misunderstanding on my part. I feel it would be better if there were no 'policing by participants.' I have seen sites where this turned ugly and did little to support the tranquility of the site. The DMCA is more than adequate and, as Tim pointed out, would not leave LT open to any liability. It's simple and sensible.

112theapparatus
Edited: Sep 26, 2010, 1:47pm Top

111 Does that mean we're to give up on reporting spammers as well?

113brightcopy
Sep 26, 2010, 3:07pm Top

111> I'd see no reason to think that. Who's worried about making spammers mad? I think in context, K.J. was talking about the copyright policing only.

114jseger9000
Sep 26, 2010, 6:13pm Top

#112 - Of course not. Spammers are abusing the site's Terms of Use.

That is different than users asking admins to step in and make what amount to legal decisions.

115K.J.
Sep 26, 2010, 6:28pm Top

113> I think in context, K.J. was talking about the copyright policing only.

Thank you, and you are correct.

116jburlinson
Oct 15, 2010, 11:46pm Top

I realize this is a done deal. To be honest, the whole debate passed me by while I was otherwise occupied. Not that it matters, since the vote was a landslide of epic proportions.

However, it leaves me with a question -- How would we go about flagging or removing a picture that is just downright wrong? Like author images that consist of pictures of such things as: a dog (admittedly, very cute), a bunch of carrrots, a flowering shrub, numerous corporate logos, book jackets, and a baby eating a huge slice of watermelon. All of these have been uploaded as author pictures in the past. Just wondering.

117timspalding
Oct 16, 2010, 12:15am Top

Nothing has changed in the technology. It's only the social rules around it.

118pre20cenbooks
Jan 1, 2011, 5:57pm Top

I've search high and low and cannot find out how to flag explicit pictures...where, please, are the instructions? or is it limited to lifetime members. thank you. I see lots of explanation of flagging, but do not see the button to click on.

119brightcopy
Edited: Jan 1, 2011, 6:18pm Top

118> There is no explicit image flagging. If you believe an image has been posted that violated the Terms of Service (and remember, the only such rule is "Do not upload X-rated pictures"), you should probably just send a profile message or email to timspalding.

You might also do well to peruse this thread:
http://www.librarything.com/topic/96914

120rsterling
Jan 1, 2011, 6:10pm Top

By explicit do you mean "X-rated"? Those are prohibited by the Terms of Service, and can justly be flagged.

It depends where the picture is. If it is a picture on an author page or on a local venue page, then just click on the picture and you should see a "flag this image" link on left side of the page that comes up. If it's someone's profile picture, I don't think there's a flagging option available; in that case, I'd email or leave a comment for staff, if you think the picture violates the terms of service. If it's a cover image that's not actually the book cover for the book, also email staff (however, if it's actually the book's cover, then the image is fine).

121pre20cenbooks
Jan 1, 2011, 6:33pm Top

I have blocked the member who had the explicit pic, but still not sure of how to flag pics that violate policies. I will keep trying to "click on the picture" and look for the "flag this image" link on the left side when I come across another pic. These are not cover image pic but profile/gallery pictures.

122brightcopy
Jan 1, 2011, 6:36pm Top

Please re-read my message 119.

There is NO flagging of profile/gallery pictures. None.

123pre20cenbooks
Jan 2, 2011, 6:25am Top

Very clear #122...sounds like a job for a superprogrammer. I will wait a while before I bring this suggestion to site improvements. In the mean time long-suffering I will be and just shut my eyes...:)

The crew behind LT appear to be so busy and hardworking and I LOVE LT so far and will have its rewards. hAppy sunday from the rainy central valley california. I enjoy the fact too that there are no flashing advertising boxes annoying me on LT, yeah!

124jjwilson61
Jan 2, 2011, 11:11am Top

If you want to make a suggestion it would probably be better if you started a new thread for it instead of tacking it on the end of an old and long thread. It would be more likely that Tim would see it anyway.

125rsterling
Jan 2, 2011, 11:43am Top

123 - In my experience, explicit images on LT are pretty rare. When you find something against the terms of service, let the staff know. In this case there's no flagging option, so just email them or write a profile message to Tim.

126lorax
Jan 2, 2011, 8:00pm Top

121>

Blocking the member might make you feel better, but it won't block you from seeing the image. I suggest adblock for that.

127jburlinson
Jan 2, 2011, 9:22pm Top

Where is this explicit picture? I've never seen one that even comes close on LT. I do lead a sheltered life, though.

128Heather19
Jan 3, 2011, 1:06am Top

127: Really? Huh. I haven't seen them often, but I have seen them. Usually only on spam profiles of datings sites and such, tho... But a few from legit users, if I remember correctly.

129pre20cenbooks
Jan 3, 2011, 5:02am Top

Gratitude for the helps.

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