Oct 04, 2016

The Breast that Launched a Copyright War

A recent blip on the internet was a skirmish between a café and a photographer. The café owner pulled a photo off the internet of a mother nursing her baby, and posted it to his business’ Facebook feed as part of a promotion. But the cafe owner neglected to pay for use of the photo, or even ask the photographer’s permission to use it. And he was defiant when asked to remove the photo.

From a PetaPixel article: “Instead of deleting the photo and post… White Moose Café today published [Melina McGrew] McConnaughy’s message and a public response to her [private] request. In a mocking tone, the cafe explained why she should be content with receiving a credit added to the original post.”

The response from the café’s Facebook followers? Primarily an angry defense of the photographer’s creative ownership of the original image.

What are the bare necessities?

So how does this contentious situation relate to Software Asset Management? Well, it’s easy to forget, even from an executive level, why SAM professionals are vigilant about software usage.

We think we’re managing software because we need license compliance. But why do you need compliance? Compliance is really about copyright. It’s about following laws for creative ownership and the legalities behind copyright infringement.

Getting down to brass tacks, copyright is not purely about the usage. It’s about how you’re using it.

Staying covered (up)

A copyright protects a creator’s work: art, music, writing, code, architecture, and so on. The creator can be an individual like the photographer, or a business that owns what their employees create.

In the software world, Adobe Systems started down the copyright path almost 20 years ago, when they sought to protect the digital typefaces they created. In a notable 1998 lawsuit, Adobe won the ability to copyright their Utopia computer font based on the outline points that creatively define its design. From the Wikipedia summary of the court case: “[T]he court determined that the choice of control points by the font editor was a work of original authorship… Creativity was involved in the selection of control points[.]”

Fast forward to today’s SAM compliance industry, which is built around software vendors getting paid for the use of software they’ve developed. If you don’t pay for a software license or pay incorrectly? You owe money, and an audit may occur.

Copyright or bust!

Whenever I give a SAM workshop, my advice is always that companies should avoid bad press and lawsuits. Seems pretty obvious, but it’s easy to lose sight of this during the daily chaos of running a SAM operation.

Forever 21 is a clothing company that creates knock-off fashion, and in 2015, they were sued by Adobe, Autodesk, Corel Corp and WiinZip for using illegal copies of software. As this article explains, the plaintiffs said that Forever 21 “ ’willfully, maliciously and intentionally’ reproduced upwards of 60 copies of Photoshop and other programs, violating the companies’ copyrights.” Meanwhile, Forever 21 claimed “the software company bullies customers who are accused of piracy into paying exorbitant license fees.”

Back in 2014, Bank of America was sued by Tibco for the unlicensed use of $300 million USD worth of their enterprise software. A BofA subsidiary, Merrill Lynch, allegedly licensed the Tibco software and continued to deploy it after the licenses had expired. Once again, there are two sides to the story. In defense of BofA, an article in PC World said, "Too often software publishers put landmines in their terms and conditions that customers can walk into.” But regarding Tibco, the article also said, “[o]ne observer said, the lawsuit may carry a lesson for all enterprises. ‘An ounce of prevention is worth a pound of cure.’ ”

Definitely not bosom buddies

While sketchy details and opposing statements make it difficult to know the real story, there’s a lesson to learn in each lawsuit. Litigation blemishes the public opinion of a company, and that public may include your future customers and investors.

An article in Computer Weekly concluded that “The case has no winners: both Bank of America and Tibco lose out. For Tibco, other customers and potential customers may well hesitate to take on new Tibco projects until they fully understand what has gone on…’ And an analyst said, “ ‘With continued cases of poor management decisions, we suggest investors steer clear of Bank of America.’ “

Which leads to why I am doing SAM. In addition to helping companies optimize licenses and reduce costs, I also help them to avoid these kinds of lawsuits, the financial penalties that go along with them, and most importantly the negative stigma generated from public scandal. A professional system for license management, along with consultants who know the risks and rewards, is essential for your success

Conclusion: The final feeding frenzy!

In the case of the breastfeeding photo, there’s been a Facebook feed frenzy. The café owner angered and alienated many followers with his disregard of copyright, but delighted other folks who liked the entertainment.

For a small privately owned business that deals in $5 and $10 transactions, well, there’s not much to lose with this behavior. For a publically traded financial or clothing giant that deals in billions of dollars annually, however, there is a huge amount at stake in both penalties and also in popular favor.

When you use a product without permission, that litigious situation is driven by usage protection and privacy laws. There are different terms and conditions built into every product. From a legal point of view, across the globe, the only available line of defense is based around the copyright laws for infringement.

Interestingly, this is the second Facebook controversy for McConnaughy’s photography. A few months earlier, the photographer got a backlash for posting an artistic photo of herself breastfeeding, which lead to her shooting a broader portfolio of that subject. This controversy and the artwork were covered in an article in the Huffington Post — for which the artist was interviewed and then properly credited.

Topics: Audit Defense, SAM Insights