Can You Re-Copyright Photos In The Public Domain?

from the not-good dept

Davis Freeberg wrote in to tell us about how a small publishing company, Summertown Sun, had issued takedown notices for public domain photographs that were put on Flickr. What appears to have happened is that a user, by the name of “Dazzlecat,” posted some photos to Flickr that she believed were public domain photographs (vintage photographs from over a century ago). However, Summertown Sun sent a takedown claiming copyright ownership of those photos. That seems odd, since public domain is… public domain. Either way, Yahoo/Flickr obeyed the takedown notice and then also took down a followup altered image and blog post that trashed Summertown for the takedown, saying that it violated Flickr’s terms of service. Yahoo is, of course, free to do what it wants — and has the right to takedown whatever it feels violates its terms of service, but what’s more interesting is the question of whether or not the images are in the public domain, and whether or not Summertown’s takedown was actually legal.

In a response to the original complaint about the takedowns, Summertown tried to defend itself by claiming:


We claim copyright on images we have creatively altered, which includes hundreds in our collections; such alterations remove them from the public domain. In addition we offer all of our images under the terms of a license agreement, regardless of copyright status, which is common practice in the image industry in recognition of considerable expenditure of production work, money, and other resources in making our products available.

That seems troubling — and not quite right to me. You can’t “remove” something from the public domain (Congress can apparently, but that’s another issue). You can alter a work and then copyright the alterations if they are significant changes. Minor tweaks and alterations are not copyrightable and certainly the underlying original image is still very much in the public domain. Now, looking over the Victorian photographs that Summertown offers, many of them do not seem to have major alterations at all. Some appear to be colorized, so perhaps (maybe?) they could claim that the colored part of the images are copyrighted, but even that might be a stretch.

Furthermore, the fact that Summertown engages in the “common practice” of putting forth a license, regardless of copyright status, is rather meaningless. If it’s in the public domain, it’s in the public domain. You can’t pretend the public domain doesn’t exist just because you add a license to something. If that were the case, there would be no public domain at all.

I’ve run this by a few copyright lawyers I know, and most agreed that Summertown’s position seems tenuous, though it really does depend on what photos, specifically, were uploaded to Flickr. So, without knowing exactly which images were placed in the Flickr stream, it’s not 100% clear that Summertown violated the DMCA with a false takedown (it’s against the law to send a takedown if you don’t actually own the copyright), but if the photo in question really did not have significant alterations, then it seems likely.

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Companies: summertown sun, yahoo

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Comments on “Can You Re-Copyright Photos In The Public Domain?”

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54 Comments
Anonymoussays:

Since the Flickr uploader has no images in his/her gallery, it is not possible to compare anything to see if a derivative work has been created from an existing work (a work currently under copyright or one residing in the public domain). One thing is clear, however. It is possible to create a derivative work from an existing work that resides in the public domain, and to then claim a copyright in the derivative work. Importantly, this in no way changes the status of the original work. It remains in the public domain and is free to be used by anyone and for any purpose.

Anonymoussays:

Re: Re:

You missed the point. If you alter a copyrighted image, the original content owner technically owns the altered image. Why doesn’t the public own the newly altered image? The point was that it shouldn’t be both ways. If you can alter the public domain and then own the copyright, then the same should apply everywhere else. The public domain is just like saying the public owns the copyright now.

Re: Re: Re:

“If you alter a copyrighted image, the original content owner technically owns the altered image. Why doesn’t the public own the newly altered image? “

Well, it depends on whether the ‘copy’ is merely derivative or transformative, but that’s an excellent point. It appears that when it comes to PD content, “derivative” IS “transformative.”

Jennasays:

Re: Re:

That’s the thing, though. They DIDN’T make any changes.

I?ve compared the so-called ?altered? images of Summertown Sun?s to the originals and there is no change. Repeat: none. Let?s be real-do you really think Karen has the time (she certainly doesn?t have the talent, either?she?s not an artist) to alter over one hundred thousand images? Absurd. Further, you can?t just change the color or add a border, for example, and then claim copyright protection. The Supreme Court wisely ruled in the seventies that the change to the image has to be significant. But she hasn?t even done that. She sells low resolution, unprintable images and charges obscene licensing fees for commercial work. It?s about time somebody spoke up. I am sad to see Flickr landed on the wrong side of this issue. I?d Google Vintage Art Downloads?there are other, better places without draconian terms.

Mark Jonessays:

Re:

Jesse – nothing is untrue about what you have said. If I create a derivative work of a work in which copyright subsists, then I have copyright in the derivative work, even though it is also an infringing work.

They who copy my work may well infringe two copyrights. This is particularly notable in cases involving so-called remixes of popular music.

No such thing as the public domain

Hate to break it to you folks, but copyright does not recognise the ‘public domain’. Either a work is protected by copyright or it is not.

This is a case of wondering if the .44 Magnum held by Summertown Sun has any bullets in it, i.e. wondering if they actually have an original work protected by copyright and that they can demonstrate Dazzlecat copied it.

The fact that their work is a derivative of another no longer protected by copyright is immaterial. You have to ask yourself if Summertown Sun’s derivative contains sufficient original work of theirs that it is consequently protected by copyright.

Unfortunately, it could be expensive calling their bluff.

This is why the freest works on earth are not those in the ‘public domain’ but those still protected by copyright to which a copyleft license is provided.

Dazzlecat might consider hosting the photos on his own server. At least that way he could ignore any takedown notices.

Better still would be to abolish copyright, but that’s not due to happen until the 3rd quarter of 2010.

Re: Is source the point

“Is the real question did the photos on Flickr taken from an original or from summertown’s files?”

Nope. Public domain means you can’t excercise copy control, even if you republished it. The exception seems to be a ‘collection’ as the combination of the individual components warrants copyright for some reason, even if the individual elements are public domain. That’s essentially Dover‘s model for clip art.

Joel Coehoornsays:

I would hope

I would hope that they’re only claiming copyright on the changed version. If they expect to hold rights over the original that would be a problem.

Can we clarify with the story in question which is the case? Did Dazzlecat upload the original or a version modified by Summertown? Does Summertown also claim copyright over the original, or just the version with their changes?

Joel Coehoornsays:

Re: I would hope

Also: what is the nature of the changes?

I wonder about a publisher going out and finding obscure and hard to find public domain photos that it can include in a stock photo service, for example, without then having to pay any original creators. It then modifies the photos with nothing more than an invisible watermark with the company’s name and uses that modification as basis for a new copyright on that version of the photo.

Since the original is obscure and hard to find, but their version is out there and promoted, if the photo becomes popular it’s likely that when people go looking for it they’ll end up at the service rather than the original, making the original even harder to find.

Of course, the reason it became popular is likely due to promotional work by the company offering the service, so I don’t have a problem with them making money off of the photos. But I am very uncomfortable with them essentially locking up something that should now be freely available.

Nancysays:

Re: Re: Re: I would hope

Dear Jenna – You said you have compared hundreds of images to the originals from PD sources. I would love to be able compare the SS images, (and other collections I have purchased) with the originals! I would love to be free to use an image in my art and not worry about “draconian terms”. It has prevented me from doing a lot of art that I had great ideas for! Can you please tell me where to go to check them? Are there links to online collections that I can check them against? Thanks so much for the “Vintage Art Downloads” tip!

LostSailorsays:

Agreeing with Mike

I agree that this seems, on the surface, a bogus assertion of copyright. Of course, I’ve not seen the originals or the posted versions, and determining the degree of alternation of the originals would be important in determining the validity of a claim of copyright, but it’s still likely Summertown Sun is overreaching.

In the letter to the Thomas Hawk site they say “We spend a great deal of time, money and creative effort acquiring, digitizing, restoring, altering, and embellishing images and producing and publishing our CDs. We provide a valuable service….”

That they go to a lot of effort to make these photos available may be laudable, but is not protected by copyright. They’d have to show a significant degree of “altering and embellishing” to do so.

However, grabbing the images from their web site could conceivably violate the terms of service of the site. But this still wouldn’t be a copyright claim and the DMCA takedown would be the wrong vehicle to enforce any supposed violation of the LunaGirl site’s terms of service.

Corbis slaps "Copyright" on thousands of public domain photos...

If you go through the Corbis photo collection you will find perhaps thousands of photos that started out their life as an “Official U.S. Navy photograph” or “Official NASA photograph”. By law any photograph produced by the U.S. government is in the public domain but as far as I can see Corbis slaps a copyright notice–and a watermark–on them pretty damn indiscriminately. And I am pretty sure they are not the only ones. I don’t know how well they enforce this but I have sure seen a lot of photos I recognized from my life in the Navy with a Corbis watermark slapped across them.

Anonymoussays:

Selective Enforcement - again

from the not-good dept -> “it’s against the law to send a takedown if you don’t actually own the copyright”

That has not stopped this sort of activity yet, I doubt it will in the future.

It’s as if there is an unwritten part of this law that sayes .. hey just ignore this section unless we tell you not to.

Public domain and Summertown

First, I basically agree with Mike, but I would like to make some corrections:
“Some appear to be colorized, so perhaps (maybe?) they could claim that the colored part of the images are copyrighted, but even that might be a stretch.” No – trademark, perhaps, but not copyright.
Also, false DMCA takedown notices are not against the law, they are actionable – they are under the civil law, not criminal.

Bridgeman vs. Corel, Victorian Tinting Instead of Colorization

The standard of Bridgeman vs. Corel is that mere effort to reproduce the work, even if skilled and laborious, does not create copyright. In practice, the great museums of the world, the major losers in Bridgeman, have accepted the verdict. They are practically all publicly supported institutions, directly or indirectly, and it would not be a very bright idea for them to do things which would ultimately lead to their funding being revoked.

SummertownSun’s response is muddled, characterized by imprecise language, and they don’t seem to have any real understanding of the implications of Bridgeman vs. Corel, that mere effort to make an accurate reproduction is not copyrightable. The whole tone of their letter is “look at all their hard work…” They only seem to have started business in 2004. Their emphasis seems to be on scanning in standard compilations, available at least in the rare books rooms of the libraries of many major research universities. Examples would be Edward S. Curtis’s The North American Indian, John James Audubon’s Birds of North America, as well as collections of paintings by particular artists which have been published as “coffeetable books.” If you Google for “postcards AND site:.edu,” just to clear out some of the junk, you will find vast numbers of collections of postcards available on the internet. By contrast, the SummertownSun collections do not show the kind of creative specialization that one finds in a decent museum collection, the quality of a curator being interested in something and spending years building up a collection along the lines of his interests. In short, these people are not distinguished curators or archivists, or anything like that.

There are certain stylistic cues. Someone who really knew a lot about pictures would want to talk about them, talk about the kinds of things he’d found. The message one picks up from the SummertownSun site doesn’t have any of that.

Victorian postcards are sometimes manually tinted. The photographer would take a black-and-white picture, make a black-and-white print, and then brush on transparent glazes, which worked like colored filters. It was a kind of poor-mans-color-photograph. This was labor-intensive, of course, but not remotely as labor-intensive as painting a copy of a painting, the obvious basis of comparison. In principle, it would have been possible to use the Japanese technique of successive registered woodblocks, one for each color, to apply the glazes, but I don’t believe Western photographers adopted this. The SummertownSun people may have colorized some pictures, or, more likely, they may have scanned some pictures which were “colorized” circa 1880. I suspect the latter.

http://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp.

http://tushnet.blogspot.com/2008/04/bridgeman-v-corel-9-years-on.html

Jennasays:

Re: Bridgeman vs. Corel, Victorian Tinting Instead of Colorization

Excellent post.
The point is, they are entitled for compensation for their work. Period. They are not entitled to licensing fees (although they scare people into paying them) and they are certainly without one leg to stand on as far as having PD images removed from a website. They don’t OWN public domain works. Nobody does, except the people.

Replies to questions and comments

Dazzlecat here.

I’d like to comment on some things posted here. In answer to the question about what photos I posted. I posted only b/w images and only the ones that had not be altered.Its pretty easy to see which ones SummertownSun alters as they aren’t very good at it. They usually just include lame stuff like dots added to a dress, hand drawn lines in a hat, etc. And while hand-coloring a public domain image is considered copyrightable, I don’t think adding dots to a dress is considered enough of a change to be copyrightable. Even then I didn’t post any images that had these changes. So even though I got the images from them, they have no legal right to tell me to remove them, because they are in the public domain. And copyright law rewards creativity, not “sweat of the brow” (labor).

In response to : Jim U’s comment: ” Is the real question did the photos on Flickr taken from an original or from summertown’s files? “

It doesn’t matter. Even though I got the images from them, they are still in the public domain and can be used by anyone for anything. Despite what their “License” claims. First of all, they can not put a “license” on those images since they are in the public domain. the only ones they hold claim to are the ones they “altered”, and in my opinion, their “alterations” are a joke.

In the lawsuite: Bridgeman Art Library v. Corel Corp., (S.D.N.Y. 1999), a decision by the United States District Court ruled that exact photographic copies of public domain images could not be protected by copyright because the copies lack originality. Even if accurate reproductions require a great deal of skill, experience and effort, the key element for copyrightability under U.S. law is that copyrighted material must show sufficient originality. (info taken from wikipedia.)

However, SummertownSun does have copyright claim over the collection “as a whole”, meaning I can’t take any of their CD collections, repackage them and sell them as mine. Which is understandable. But for them to claim they owned the images I posted on Flicker (who I now refer to as Fluckr) is utter non-sense.

And they are not the only ones attempting to do this. Many other businesses are trying to intimidate artists who are using public domain works. There seems to be a huge fight going on right now over public domain images and works. Lots of businesses (musuems, art agencies, and online databases like Corbis) are trying to get ownership because it would mean big, big bucks. Its something that artists and other people really need to be fighting against.

In response to Anonymous Coward saying ” You missed the point. If you alter a copyrighted image, the original content owner technically owns the altered image. Why doesn’t the public own the newly altered image? The point was that it shouldn’t be both ways. If you can alter the public domain and then own the copyright, then the same should apply everywhere else. The public domain is just like saying the public owns the copyright now.”

As an artist, I disagree with you. My artwork and photos are mine, I created them. If someone takes one of my cat images and puts it in their own artwork, that is copyright infringement because my image is not in the public domain. This is to protect the livelyhood of artists and other creative people.

But a public domain image can be put in someone else’s artwork and then the overall NEW image can be copyrighted. But it must be created in a new and original way. A good example would be my SummertownSun Sucks artwork. The women and the background are four separate public domain images that I altered by cutting them out of their original backgrounds and rearranging them together in a new and creative way.

The three women in the image and the background are still in public domain. But the overall new image that I created is considered a new and creative work that is copyrightable. I put it in the public domain though, hoping people will post it everywhere as a protest to companies like SummertownSun, Flickr and others who are trying to claim copyright over public domain images.

Anonymoussays:

Re: Interesting

It is possible for two or more persons to hold a copyright on “identical” works so long as each person created the work independently of the others.

For example, if by pure chance I sat down and wrote a novel that by pure chance is identical, word for word, with a novel written by someone else, and if I had never seen/heard/read the other novel, I would not have infringed any of of the other author’s rights under his/her copyright and would hold a copyright myself to the novel I wrote.

Barrysays:

Copyright-free derivative works?

Perhaps the ticket to having copyright of new work is to have it sufficiently creative that it is no longer “derivative”, and is, in fact, a new work. That’s the putative goal of the copyright law.

Any derivative work of a work in the public domain is, by definition, still public domain because it is derivative (recast, adapted, transformed from one or more pre-existing works) of works owned by the public. Just as you cannot patent an obvious combination or improvement of prior inventions, you cannot claim new copyright in derivatives of works that have expired, or are otherwise in the public domain.

copyright question regarding digitized clip art

Hi – I hope someone here can help me. Zazzle is now offering custom embroidery. I purchased a membership to
http://www.embroiderydk.com. They did not have a TOU anywhere to be found on the site. I emailed the site owner, told her what I was using the designs for and she emailed me back saying that the designs are not public domain and cannot be used at Zazzle. I happen to know for a fact that she got the original images from clipart.com. I know this because I have the EXACT same images which I got at clipart.com. I was so happy to find them in dst format so I could offer them as embroidered products as well. Can she digitize these images and now claim them as her own? One of the images I had digitized myself when the embroidery service first started – am I now in violation of her phony ass copyright? Sorry, folks – can you tell I am angry?
My email is pugmom4@cox.net. Can someone help me out here, please?

thanks,
Mindy

Tinasays:

Re: Re: Is Anyone Watching This Thread Now?

Mike,
I would like to comment now, since at least someone is reading it. This is a vent time for me because this issue just came up to me again, due to some work that I am doing now. (Yes, there are a lot of I’s in this post).

I am a stay at home older mom with one child. I have to stay at home because of several different health reasons, which I will not bore everyone about.

This is why I want to sell CDs of puzzles, and I try to do a bit of good along the way to help others out too.

Been there and bought the t-shirt so to speak.

I feel for the artists that can not use public domain pictures in their artwork because I love to scan the pictures too, and make puzzles out of them that people can play on their computer. It is fortunate that I love the Victorian and Edwardian era, at least there are not as many copyright restrictions on them. Well, at least in theory because it depends on where you get them from of course.

I have resorted to buying the original material, and scanning them in myself, and then cleaning them up in a good graphics editor.

The point is that this is very expensive, but I am so scared of breaking someones copyright, that it cost a fortune to make the CDs.

Also, I want it to be known that I would never ever intentionally break someones work, but my gosh, it is so hard to know what you can do!

Another example:

There are clubs online that I belong to which make and sell personalized Santa letters for children, and it is scary to send in free pictures that I have scanned from original postcards or old greeting cards of old world Santa’s because of the fear for the owners, to post them on the websites due to copyright violations.

I am giving them away, and trying to help the people on their websites because of copyright issues. Yet, I feel intimated by the big boys and girls that have so many images.

Truly, I will give away images from my scans for artists or others that can afford them.

This is not a promotion of me and what I do, the issue of copyright violations is mind boggling.

Where do you stand on these types of issues?

Thanks for any input on this, and I appreciated your response.

Thanks!

Re: Re: Re: Is Anyone Watching This Thread Now?

Tina,

Thanks for letting us know about your situation. It is, unfortunately, not all that uncommon these days, and shows how copyright is all too often used to hold back creativity — such as yours — rather than encourage it, as is its stated purpose.

The “chilling effects” you feel are very serious, and it’s one of the main reasons why so many people are fighting the long, difficult fight of fixing copyright law. It won’t happen for a while, but it will happen…

Tinasays:

Thanks for the Input Mike!

Mike,
Thank you for the thoughts on the copyright issues, I do appreciate it very much. Also, thanks for the kind words too, I really needed to vent, and have someone listen and respond.

I hope the following message is okay to post here, if it is not please remove my post, okay? No hard feelings on my part at all.

If anyone would like some of my graphics then please send me a message here on this board. After all, they are public domain pictures, so I do not own them.

Also, if any of you that are the good design artists that I know you are,and would like to help a website for personalized childrens Santa letters, then drop me an email to:

TinaAMS1962@yahoo.com

(Gosh, I know that is right!)

Anonymoussays:

“Because we usually strive to make our alterations fit the original vintage style, in most cases it is difficult or impossible to tell which have been altered by us and which have not. (Some people seem to believe they can tell, but except in the case of “altered fairies” like the ones above, they are usually incorrect.)”

Something just seems wrong with their whole theory.

Sheogorathsays:

Copyrighting the Sun

“Because we usually strive to make
our alterations fit the original vintage style…”

What’s been quoted above is a description of restoration, not alteration. It isn’t sufficiently substantial either. Any attempt to copyright this is like trying to copyright the sun, so rip away with a clear conscience. I believe class action suits are an option in the U.S.?

cANDYsays:

OLD FAMILY PHOTOS

tHIS IS ACTUALLY A QUESTION AS TO SOMEWHAT LIKE THE ABOVE SUMMERFILD CASE ,mY GRANDFATHER WROTE LOTS OF ALMANCS LATE 1800S EARLY 1900S AND DIED 1916 ,I KNOW THEY ARE IN {PUBLIC DOMAIN}BUT WHEN THESE ARE COPIED FOR PROFIT CAN ALL THE ORIGINAL CONTEXT ,ALL FAMILY PHOTOS AND EVERY PGE BE IDENTICAL TO ORIGINAL ONE PUBLISHED BY AUTHOR…

Violetsays:

copyright

“Although the originals may have been “public domain,” the altered versions constitute derivative works which are entitled to copyright protection. Yes, it’s true!”

This is from the LunaGirl, aka Summertown Sun, website. The problem with this statement is that it is clear that they think they now have rights over the original image because they made altered versions of it. This is evident because they say, “although the originals may have been in public domain” which is written in the past tense, meaning that they believe their work, in effect, removes the image from the public domain. Really they are bullies, and their lawyer is daring you step over the line. Yes, they have rights to their alterations but it can’t be one or two pixels, or otherwise all the designers would start a free-for-all of collecting and laying claim to public domain images. The problem there is that we all know that most of these images were printed in the hundreds, if not the thousands. In truth, Summertown Sun has a very tenuous case, but it would cost a bundle in lawyers fees to make them stop what basically amounts to laying claim to anything they touch.

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