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MSN helps people lift your stuff, puts it on mugs, then sells it

Communities move looks pervertedly Napsterish...

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The Microsoft Network may have to raid itself. A groovy new facility available in MSN communities allows you to steal other people's pictures and then get MSN's partners in copyright conundrums to shove it on mugs, T shirts and similar which they then sell to you.

According to the San Jose Mercury the new service was added in late November, and is a partnership between MSN, iPrint.com, Fuji Color Processing and AmazingMail. A 'buy products' button appeared next to images in MSN communities, effectively turning them into a vast resource of artwork and photography that could easily be transferred to merchandise. This wasn't exactly what MSN seems to have had in mind; the apparent intent was to make it easy for people to put pictures of their friends, family and pooches onto T shirts, but the system makes it just as easy to lift other people's stuff.

Not that it is necessarily other people's stuff. If you put artwork up in an MSN community and it's used by a third party to create merchandise, you don't get money for it, but MSN's terms and conditions make it pretty clear that by uploading, you've given it permission to do what it likes with the image. You are granting "Microsoft, its affiliated companies and necessary sublicensees permission to use your Submission in connection with the operation of their Internet businesses including, without limitation, the rights to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Submission."

Clauses of this sort are fairly common for ISPs, portals, community services and the like these days, but until now they haven't tended to figure in arguments over copyright, largely because a community's stuff tends to be pretty specific to that community, and not very interesting outside of it. People do grab good pictures for their own use, of course, but they tend not to put them on mugs and T shirts to any great extent. But the reaction to MSN's merchandising move suggests that it may turn out not to be particularly smart to try to enforce these clauses.

The Mercury cites Pics from the Inside, the biggest MSN photography community, as an example. The problem for MSN here is that the photography in this community is worth something, and is attractive to a wider public than just the community's membership. Pics from the Inside is currently running a warning message on its front page, saying that the photos in the community are copyright, which is true, and that: "It is unlawful for anyone to take the photos or art work from this community to create mugs, mousepads or any other product without first obtaining the permission of the member that has the copyright. Get permission first & protect yourself."

That's not necessarily true, if the MSN terms and conditions turn out to be legally enforceable. Communities can however make themselves private, which would limit the distribution of images to some extent, but it's not a 100 per cent solution - if you've got good stuff in your community, people are going to join and then put it on mouse mats, right?

So, puzzle for MSN: you want to make MSN communities into a busy, deeply happening place where people can exchange all sorts of stuff happily and freely. But in making this easier to do, you find you've inadvertently Napsterised it, while characteristically making yourself look grasping by selling the T shirts as well. What to do, in order to stop this turning into a massive PR own-goal, and to stop the communities fleeing in terror? ®

Related Link

Mercury: MSN users steamed that service lets their images be sold for profit

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