Aftermath of Gallery's legal dispute

Thanks to some very timely assistance from the Electronic Frontier Foundation, the recent legal dispute has been resolved. Unfortunately, it didn't come without a cost to the project, but thanks to the EFF the cost was minimized. Please support the EFF so that they can continue to help projects like ours innovate without fear.

I believe that Gallery is in the clear from this lawsuit. However I'm going to be conservative and leave out the names of the plaintiff and the defendant. If you can figure out who they are from the details I do provide, do us all a favor and keep it to yourself. If we stir things back up again, it can only hurt the project.

Around the end of January 2005, I received an email from our contact at EZPrints. He had been contacted by an attorney regarding a dispute involving copyrighted material. If you didn't know, EZPrints is one of the print services that Gallery provides to allow you to easily order prints on-line. Apparently, somebody was hosting low resolution versions of a professional photographer's high quality images in a Gallery install, and allowing people to make their own prints. It's a long story how the photos in question arrived in the Gallery. It's still not clear to me if it was on purpose or an accident. Either way the end result was that the pro photographer felt that his reputation was getting tarnished and his business was being damaged by having his name associated with these readily printable low quality images. I'm sure that those of you reading this who are pro photographers will understand his plight. I don't know how hard he tried to get the images removed, or what means he employed but ultimately the Gallery admin didn't take the images down in a timely fashion. The photographer hired a lawyer. The lawyer looked at the photos and quickly figured out that the print services could be profiting from it and sent a demand letter requiring them to make reparations for all money earned by selling prints.

Now at this point, you're probably thinking -- why does this even affect Gallery? It's not like we did anything except give away free software. Well the twist here is that Gallery has affiliate agreements with all print services. When you use Gallery to make a print, the project gets a very small kickback from the print service. It's a pretty good deal for everybody. Gallery owners get free software, the print service gets lots of business, the end user gets easy prints, and Gallery gets a little cash. We take about 7-10% of the profit that the print service gets, so on a 29 cent 4x6 that means we make about 2 cents. It's not a lot, but it adds up and volunteer projects have costs. So the kicker here is that if anybody made any illegal prints of this copyrighted material, then theoretically Gallery actually profited from it. Unfortunately, since we profited this makes us a target.

Sooner or later, the lawyer figured out Gallery's involvement and sucked us into the legal dispute. Now I don't know about other small open source projects, but we don't exactly have a crack legal team just waiting around to jump on issues like this. So when this arrived in my inbox I was shocked and dismayed. Luckily, I was able to solicit some legal guidance from the smart folks where I work where it turns out one of the lawyers is a happy Gallery user. Though he couldn't give me any concrete advice (he works for my employer, hence he can't work for me) he was able to put me in touch with the amazing Wendy Seltzer at EFF.

Wendy rapidly decomposed this legal dispute into a few simple facts, namely:

1. We at the Gallery project did not know about this copyright infringement ahead of time
2. We have no control over the websites that use Gallery
3. We made no more or less profit from the unlawful purchase of copyrighted material than we do from any other purchase.

The combination of this indicates that we cannot be held liable for this infringement. I received a lot of advice from a lot of people on this issue and mostly it just contributed to my rising stress levels and falling hair levels. But 2 minutes on the phone with Wendy made the storm clouds part and the sun fly down and bop me on the head. She's got the knack of making this stuff seem easy. She told me what to say to defuse this, I drafted a reply back to the Lawyer Who Shall Remain Nameless and since then there's been blissful silence about the issue from them. Sometime in the intervening two weeks between when I found out about this and I sent my email, the photos were taken down so presumably the pro photographer's immediate needs were resolved.

I was hoping that this would end our problems, but I think in reality it's been a wake up call for us and for our print services. In the process of settling this, I had lengthy discussions with my contacts at PhotoWorks, EZPrints and Shutterfly. They are faced with a big dilemma: they are liable for prints made through their service, but they have basically no way of separating legal prints from illegal prints. That means that every time they make a print they're rolling the dice and gambling that it won't trigger another lawsuit that will cause them to have to spend time and money defending themselves. You could make the case that these lawsuits are frivolous and unnecessary and that it's wrong to go after the print services for something that's out of their control. I'm not going to argue. But realistically that's where the money is so if a lawsuit is going to happen that's where it'll be.

To protect their interests, print services want the Gallery project to sign an agreement which basically says that we'll be liable for any illegal copyright material that is submitted to the print services. That would require us Gallery developers to force you, the Gallery admin, to sign a similar agreement in order to protect ourselves. Then when the print service gets sued, they point the finger at us, and we point the finger at you. Lovely, isn't it? Unfortunately, there are plenty of loopholes in that plan where the Gallery admin leaves Gallery holding the bag and getting sued. Even if it were feasible to do that, we want no part of it. We just want to give you high quality free software. What you do with it is your business, and we wish you all the success in the world with it.

So this marks the end of our relationship with EZPrints. You'll notice that it's missing from the list in our new 1.5 release. They don't want to run the risk of getting sued over this, and I can't say that I blame them. I wish it worked out otherwise, but it is what it is. This sucks for you, the end user because today you have one less print option. It will suck even more if the day comes when we can't offer any print services. I truly hope that does not come to pass, because on that day it will become ten times harder for my mom to print photos of her grandchildren, and that's one of the reasons why I wrote Gallery in the first place.

Come what may, we're going to keep doing what we do best: write high quality software and give it to you with no strings attached. All we ask is that you use it and enjoy it, and maybe tell a friend. And if you like the sound of that, then remember that the people who defend our ability to do this need your help. Stand up and be counted.