Well, we knew we were right. The Iconic Britain competition - an attempt by Microsoft to get someone, anyone, to use their live.com search engine - has officially backfired on the company and the competition's main sponsors, Nikon.

As I detailed in previous posts (see 'Microsoft & Nikon encourage copyright theft' and 'The Iconic Britain backlash'), the competition trampled all over photographers' intellectual property rights.

The initial phase of the competition, which involved site visitors voting on images found using live.com, has now shut. For the next stage, Microsoft will present 500 images on which people can vote - but the company will seek permission and purchase the necessary licences.

In the meantime, both Microsoft and Nikon have responded with due humility to the outrage they caused among photographers who felt - correctly - that their work was being exploited for the benefit of those companies.

Leading the charge was the Pro-Imaging group, and it has now received official responses from Microsoft and Nikon. Microsoft said:

We are grateful to Pro-Imaging for raising its concerns about the use of photographers' works on the Iconic Britain website. Although this was only a short marketing programme, it’s always very important to Microsoft that we respect the intellectual property rights of others. We apologise that we have not lived up to our ordinarily high standards. 

We have since taken steps to obtain the rights to use every image to be featured in the subsequent stages of the Iconic Britain competition. We also welcome the invitation by Pro-Imaging to discuss with them best practices when using photographs in similar competitions.

And Nikon's message:

Nikon would like to confirm that it has withdrawn its support from Microsoft’s Iconic Britain competition. This is due to the feedback and concerns raised by photographers and entrants surrounding the competition mechanic that was developed and promoted by Microsoft.

Nikon will fulfil its prize commitment to the winners, however it will not be associated with the competition going forward.

Clearly, these companies (or, more likely, their lawyers) understood just how vulnerable they had made themselves. Microsoft, in particular, isn't in the habit of making apologies so, at the very least, they must have understood just how bad this made them look. Nikon's statement is stronger and is to be applauded, I feel - though it's carefully worded to push all the responsibility Microsoft's way.

This is an important victory.

While many togs have talked about charging for use of images in the competition (though some of us were being ironic, given the impossibility of any such claim), there is no sensible or logical way of working out fair compensation for such use, especially as one can have no definite proof that one's images were ever displayed (though Microsoft's logs might reveal that). The important thing, then, is to prevent the use of images in this way.

The very vocal response from photographers, and the backing-down by Microsoft and Nikon, have helped set a precedent that this kind of abuse of people's intellectual property is simply not on.

The attempt by Microsoft and Nikon to abuse photographers' copyrights in the Iconic Britain competition has raised something of a storm (see 'Microsoft & Nikon encourage copyright theft').

Nikon is already making efforts to distance itself from the whole mess by claiming that it is merely supplying prizes and that the competition is really all Microsoft's doing (see this discussion on Flickr). Its general manager, Simon Coleman, has disappeared from the list of judges, too, with no explanation offered. Its response to one photographer includes the phrase: "we would like you to understand that we are not the promoter". This, of course, neatly sidesteps the uncomfortable fact that the reason it is supplying prizes is precisely to promote itself - a significant point, as we'll see in a moment.

Microsoft has already issued a somewhat inadequate and, frankly, rather pompous response to Pro-Imaging which says, in part:

All images that feature on www.iconicbritain.co.uk are images from the internet that are already in the public domain.

Wait, what? Surely there must be someone at Microsoft who understands the difference between 'from the internet' and 'public domain'. If I put an image on my website, that does not in any way imply that the image is now public domain and therefore available for use by just anyone. If I supply an image to a third party for use on their website (and many pro photographers' images that have popped up in live.com searches have been scraped from picture library sites), I give a license to that company and that company alone to use the image. Putting an image on the web is not the same as making it public domain. Several people have pointed out that Microsoft software is available for download on the Internet. So is its software now 'public domain'? No, I didn't think so.

It could be argued that Microsoft's live.com search engine is just indexing images on the web much as Google Images does, and that this is all that's going on at the Iconic Britain website. The competition is simply making use of the general search engine capabilities of live.com. (The whole competition seems to be a feeble attempt to cure web users of their Google habit and push the number of live.com users into double digits.) There is established case law involving Google which found that indexing thumbnail images and presenting these with links to the sites where the pictures were found constitutes 'fair use' of the images.

Microsoft has already whined that it is up to photographers to prevent this web scraping if they don't like it - and this can, indeed, be done by using a robots.txt file. You simply put the following in a robots.txt file in the root directory of your website:

# prevent Google Images from indexing images
User-agent: Googlebot-Image
Disallow: /

# prevent images.live.com (MSN) from indexing images
User-agent: MSNBot-Media
Disallow: /

There are some issues with this, however. First, it doesn't always work. Microsoft's bots are notorious for not behaving properly in this way. I've found numerous comments on the web that, try as they might, webmasters have been unable to stop MSNbot from indexing their pages, often with unnecessary frequency that wastes bandwidth. It's almost certainly not that Microsoft is up to anything underhand - just that its software is predictably flaky and fails to comply with industry standards. Plus ça change...

Second, Microsoft fails on the fair use defence - at least on the Iconic Britain site. I'm told that the page contains scripts that should provide links from the thumbnails to the original sites. Alas, this didn't work with any browser I tried. I know of only one other person who has got these links to work. Again, Microsoft's lousy software is to blame. It seems they can't even write a simple script without it being buggy. These links are critical to the fair use defence. As Microsoft's software fails to provide these links, in functional terms it has failed to comply with the requirements for fair use.

And in any case, the fair use provision is null and void. Why? Because the Iconic Britain website is not a search engine. It is not simply providing thumbnail links as the result of a search. It is presenting the images found as part of a commercial promotion - in other words it is using the images to promote Microsoft and Nikon. Visitors to the site are encouraged to select and rate images as part of the competition process. The images are being exploited in the context of the Iconic Britain website, the competition and the promotion of the participating companies. This is clearly commercial use of the images for which all photographers involved are entitled to claim compensation. I'm thinking something of the order of £500 per image (given that the use was unauthorised).

Why not check to see if your images are there? And get your invoice in quick. Something tells me Microsoft's accounts department is about to be overwhelmed.

If you want to complain about use of your images in this way - or send a bill - here are some contacts:

The main contact address for the competition is: msncompetitions@thin-martian.com

Microsoft's contact for claims of copyright infringement is: jkweston@microsoft.com 

If you don't feel like letting Nikon off the hook just yet, email: simon.coleman@nikon.co.uk

As I mentioned in my previous post, I contacted these people about the abuse of my images. This is the reply I received from J K Weston:

At Microsoft we take copyright very seriously and endeavour to provide all users of our products with guidance on respecting copyright. However you have informed us that you object to certain of your images being submitted by users and displayed through the competition mechanism and that you do not wish these images to be included in the competition.  We appreciate the fact that you have informed us of this situation and want you to be reassured that we will take steps to ensure that each image you have reported to us will not be used again within the competition.

The initial stage of the Iconic Britain competition, in which users submit entries, closes at 1pm on Thursday 31st July, after which we will be compiling all submissions ready for voting prior to the Final 100 reveal on Thursday 14th August. Naturally, we will exclude those images you have notified to us from this voting. Microsoft will obtain the consent of the copyright owner in relation to all images that will be featured on www.iconicbritain.co.uk during the Voting and Reveal stages of the competition.

Note that they have agreed that my images won't be used in the competition (which is just as well - not a single one was taken in Britain). However, what I requested was that my images be removed from Microsoft's servers. Not a word about that. But let's give them the benefit of the doubt and assume that Microsoft is as bad at writing letters as it is at writing software.

UPDATE: I've been pointed to this Microsoft web page where the software dinosaur helpfully points out:

Isn't it in the public domain?

Just because a work is freely available, does not mean it is in the “public domain.” Copyright is for a limited term; it does not last forever. In the copyright context, “public domain” means the copyright term has expired. Once a work is in the public domain, it may be freely used without permission from the copyright owner.

Determining the term of copyright can be complex, particularly because copyright laws vary from country to country. Also, even if the copyright on a work has expired, you should be careful about how you use a public domain work.

So someone at Microsoft does indeed understand the difference. It's a shame that the competition designers, and J K Weston, don't read their own corporation's website. 

UPDATE: Microsoft humbled and Nikon pulls out - see 'Iconic Britain: Microsoft and Nikon admit faults'.

Microsoft and Nikon have come up with the ideal photo competition for today's generation of lard-asses and couch potatoes. To enter the 'Iconic Britain' competition you don't have to do anything as active and creative as take photographs. No, it's far easier simply to enter other people's. It saves all that mucking about with cameras - saves you even having to leave the house.

All you have to do is use Microsoft's Live Search facility (which, let's face it, is desperately under-used, given that it's crap and everyone prefers Google) and enter any photos it spits out that you happen to fancy. You might win a camera. The poor sap who actually went to the trouble of taking the picture gets nothing - in fact, probably won't even know it's happened.

Which brings us to the copyright problem. 

The terms and conditions do contain a 'cover your ass' (CYA) clause (though note, it's only Microsoft's ass that gets covered, not that of anyone entering the competition): 

Entrants acknowledge that some images generated by Live Search may be subject to the intellectual property rights (including copyright) of a third party. Microsoft does not encourage or condone Entrants submitting images to the Competition that infringe the rights of a third party. In the event Microsoft is notified that an image infringes the intellectual property rights, or any other right, of a third party it shall promptly remove the image from the Competition.

First, let's deal with that 'some images'. The fact is, with the vast majority of these images, the intellectual property rights belong to someone. Copyright exists in an image automatically, the moment it comes into being. In fact, it's highly unlikely that any of the images are copyright-free. So this CYA paragraph starts with classic weasel words that have the effect of making it look as though Microsoft cares but without frightening potential entrants too much.

Next, how exactly are people expected to check the copyright situation? The images appear to have been stripped of metadata, even assuming that people entering the competition are sufficiently tech-savvy to know about, or be able to locate, metadata.

In order to be sure that they are not infringing copyright, the only logical and reasonable course of action for any entrant is to enter only their own photos. But that would rather defeat the whole object, wouldn't it? If Microsoft and Nikon had taken even a few minutes to think this through, they would surely have to come to the conclusion that this competition will inevitably result in wholesale copyright infringement. It couldn't be any other way.

Why? Well, in spite of this luke-warm show of concern about intellectual property rights, it's worth remembering that this is a competition. There are prizes up for grabs. Microsoft and Nikon are therefore offering juicy little incitements that may be enough for entrants to overcome their worries about copyright, even assuming they had any.

Various heated discussions have broken out about this, such as here and here, and Pro-Imaging have had their say too.

Microsoft, of all companies, should be a little more careful about encouraging copyright infringement. In an Internet age, in which we're seeing the growth of open source and new business models around software, Microsoft remains resolutely a last-century company, a software dinosaur aggressively protecting the intellectual property in its shrinkwrap products.

It's also sad to see Nikon, a big name in the creative field, complicit in this tacky endeavour.

Why would two such firms engage in an activity that seems so likely to result in legal action for copyright infringement? I mean, someone is going to have good grounds for sueing. You never know, it might be me. Using Live Search, I found 14 of my images. I haven't given Microsoft permission to copy, store or publish any of these images. And I've written to tell them so. I'll let you know what they say.

UPDATE: See 'The Iconic Britain backlash' for more about this story.

UPDATE: Microsoft is humbled and Nikon pulls out - see 'Iconic Britain: Microsoft and Nikon admit faults'. 

The web offers companies a way to improve the customer experience. They can provide interactive services 24/7 with all the work being done by the customers themselves.

Theoretically.

The trouble is, when things don't go quite as planned, the result is not a better customer experience, but a seriously pissed-off punter. I know. I'm one.

Years ago I chose France Telecom's Wanadoo as our ISP. We don't use them for that any more, but we retain the account because it's very cheap, some people still insist on sending messages to our old addresses and it's a useful backup when our current ISP, Altitude Telecom, decides that providing an Internet connection is just too much effort. We have a WiMax connection via Altitude and every now and then its servers or its transmitters give a huge gallic shrug and we're cast into net oblivion. Selah.

Wanadoo has since become Orange following the latter's acquisition by France Telecom. Similarly, we had a cellphone account with Intineris - another France Telecom brand that has now become Orange.

That has provided Orange with two opportunities for making me angry, frustrated and aggrieved and it exploits those opportunities with surprising regularity.

The problem is the company's website - orange.fr - slick, flashy, busy and way, way too orange. But it's not the colour that gives me a headache, though it might if I could ever use it long enough.

There are two features on the site that I find useful. One is the ability to download the monthly invoices for the ISP service. I need those invoices for my accounts. The other is the ability to top-up my pay-as-you-go cellphone account.

The two accounts have always required separate logins, which was an annoyance, though more of that later. The real issue is that these invaluable services hardly ever work. When I request an invoice, most times I'm greeted with a message saying that there is a 'technical problem' and that I should try again later. When I see that, I know that 'later' generally means the next day at the earliest. That's highly irritating when I've girded my loins to tackle the accounts that day. I manage to download an invoice on the first attempt perhaps one time in four or five.

As for the cellphone, there are more hoops to jump through - choosing the amount I want to add to the account, giving the authorisation number for the credit card (which means remembering which credit card I've registered on the account). After a while I arrive at the end of the process ... which is usually a message saying there's a 'technical problem' and that I should try again later. Today will mark my third day of trying to add credits for the coming month. It's always like this.

Then I spotted a new link - an option to combine the two accounts so that one has to log in only once. I filled in the form, received a confirmation code via SMS, typed that into the relevant page, hit 'confirm' ... and got the message that there's a 'technical problem' and that I should try again later.

I give up. 

Everything works differently in France. Sometimes the differences are obvious, and sometimes they are subtle. It's the latter that catch you out.

Take insurance. I don't much care for it, frankly - always considered it something of a con trick. But you have to have it. That's the law. We are obliged to take out building and public liability cover for our house and insurance for the car.

The car insurance has just come due and I was bracing myself for the impact on our bank balance when a friend suggested we might be able to get a better deal. The problem was, I thought we were too late.

If memory serves, the rule in France was that you had to let your insurer know at least a month before renewal if you intended to cancel the policy or move to another company. Otherwise you were committed to another year with the same insurer. Sheer indolence and a lack of awareness about renewal dates meant we've stayed with the same company for many years.

Apparently, I haven't kept up to date, because the rules seem to have changed. Even so, not everyone is playing quite fairly.

An agent for AGF - a charming young woman called Sophie - came to our house and checked through our current policies. It was only then that I realised that the car insurance was due that week. She was professionally outraged - but not surprised - to find that our current insurer had not yet sent a reminder. Because this is how it works now: the insurer sends you a notice with that year's premium. If, like us, you pay by direct debit, you need do nothing. The notice itself contains the new documents (green card and the ticket you place inside the car's windshield). However, if you're shocked into action by the size of the premium, you have 15 days from the date of issue/posting to cancel the policy.

It's that date of posting where things get tricky. Sophie told us that, when the notice arrives, we should keep the envelope.

Sure enough it came. The date of issue on the insurance document was the 6th of the month. The postmark said the 24th.

If you didn't know better, you would assume that you were simply out of time in which to cancel. Fortunately, Sophie was clued-up to these shoddy practices, which are now widespread, apparently. The postmark is the date that really matters. We signed up with AGF and she handled all the business of cancelling with the previous insurer.

It was worth doing, too. Our new house and motor policies are better than the ones we had with the previous insurer (no excess on the home policy, for instance). We also took out two life policies and the whole thing came to 100 euros less than we paid for home & motor with the other firm.

Lesson learned. We need to keep on top of these little regulations. And we have to assume that even major companies with reputations to protect are not above breaking them.