I’ve spent the past couple of weeks confused (you may be surprised to find that’s not my default setting). Let me explain the situation, and hopefully you can help sort things out.

Earlier this month, the editor of an American magazine called Cooks Source earned the full force of the web’s fury by not only stealing a writer’s article – “A Tale of Two Tarts,” about the non-American origins of apple pie, complete with medieval recipes – but by defending her move with this clearly ridiculous line: “The web is considered ‘public domain’ and you should be happy we just didn’t ‘lift’ your whole article and put someone else’s name on it.”

The day the story broke, Twitter, Facebook and my inbox were filled with people sharing the story and abusing the editor’s lack of sense and knowledge of copyright law. What an idiot, the general tone was, to think that just because something’s available online in digital form that you can just take it without paying the creator.

Shortly afterwards, I bought a Kindle and asked friends for book recommendations. Not only did I receive suggestions of beloved titles and favourite authors, but directions to torrents to get them for “free” – this advice from some of the very same people lambasting (the apparently now defunct) Cooks Source.

So why the double standard? Why do so many consider it perfectly okay to download illegal copies of books, albums and movies, but destroy the career of an editor who does the very same with an article? Why do they mock a woman for treating easily-available digital content as free, when they themselves do it all the time?

I’m not defending Cooks Source – as a journalist, I consider the editor’s ignorance and attitude appalling – but why was the rights holder the hero in this case, and the exact opposite in others?

The editor’s indignant tone certainly added fuel to the fire – her latest message (which suggests she types content straight from books) doesn’t help. Cooks Source also stood to make/save money by pilfering the pie article, and while that’s not much different from saving a fiver on an eBook or a tenner on an album, the issue surrounds business and not pleasure.

But that hardly seems enough to unleash the righteous wave of angry mockery that came down on Cooks Source. I can’t figure it out, so over to you: any thoughts on why piracy has such a double standard? Why is it cool to download entertainment but not to filch pie stories?

To the embarrassment of my family I had items from my bag confiscated at both.

This often happens to me, as an inveterate tinkerer and technology hoarder; bike parts taken by Science Museum staff, USB drives and mobile phones at a laptop manufacturer’s design centre. It’s no big deal to me, as long as it’s justified.

On the Eye it was a small toolkit I carry in case my bike falls to pieces. Fair enough; the spanner could be used as a weapon, perhaps, or to undo the capsule and send it plunging into the Thames. At the concert, though, it was my DSLR which was flagged up, as I was told that on the second day of the two-day event, staff had been told to stop “big cameras” from entering. This has been happening more and more in the last year or two.

The problem here was nothing to do with security, but more to do with copyright. The organisers didn’t want people to take shots of the bands on “professional” cameras, even though everyone there had paid a considerable fee to see said bands. Strangely, no compact cameras or mobile phones were being taken, though.

So, at the entrance I was told that I needed to hand in my Nikon D40 at a steward’s office, and was ushered through the gate. I’m ashamed to admit that after a very, very brief search for this office I instead walked straight towards the stage, and as a result managed to get some lovely shots of my family relaxing in the sun. None of the stage, though – a shot of Sting from a quarter of a mile away isn’t much of a memento as far as I’m concerned.

The true piracy, as the concert organisers see it, was being perpetrated not by us “big camera” users, but with mobile phones. Cheap memory cards can handle lengthy clips now, and several hundred people seemed to be recording the whole concert from various angles. For what reason I may never know, as a two-hour set filmed in YouTube-quality seems like a waste of time to me.

Try taking 35,000 people’s mobile phones away, though, and see what happens…

Although the Eye was practically made for cameras, it seems strange that they are welcomed with open arms there, but (half-heartedly) banned elsewhere. Strange, also, that the organisers of the concert were happy to let me take a toolkit full of pointy metal things into their gig, but not a camera.

Perhaps technology needs to offer the solution here, as well as being the problem. Anti-camera technology has been around for a while, and could stop people taking pictures of certain copyrighted areas, designs, people, etc. while allowing photographs of friends and family without the intervention of security guards. Of course, another solution would be for people to lighten up about copyright a little.

This point hit home recently when looking at the mini-storm that broke out regarding Adobe’s new Photoshop Express service. Like everything else on the web signing up for Photoshop Express is free – at least for the first 2GB of storage space. However, the original terms and conditions made it clear that by posting to the public galleries you were granting Adobe a “worldwide, royalty-free, nonexclusive, perpetual, irrevocable, and fully sublicensable license to use, distribute, derive revenue or other remuneration from… such Content.” (terms since entirely rewritten)

Like everyone else my original reaction was horror. They’re planning to sell on my photos! How dare they? All that money should be coming to me! Daylight robbery!

But let’s stand back a little… and get real.

To begin with: of course Adobe wants to make money from developing and hosting the Photoshop Express site. It has to make money to pay for the developers’ time and expertise and the considerable hosting infrastructure costs involved and for the shareholders’ investment. That’s not greed it’s common sense.

More to the point, it’s actually in your interest for Adobe to make money from the site – that way it can put more money into making the site better, adding new functionality, boosting free space and so on. In short: give you more for free.

So how do you actually go about making money on the web? For non-ecommerce content-based sites the answer is simple: by including links to e-commerce sites that are paid-for as advertising or through commission. It’s not selling directly but it’s selling-on the chance of selling directly.

So maybe advertising was all that Adobe ever meant by “deriving remuneration”. Certainly the quickly revised terms make it clear that “These limited licenses do not grant Adobe the right to sell or otherwise license Your Content or Your Shared Content on a stand alone basis.” Panic over. It’s only indirect selling. Status quo restored.

But would it necessarily be so bad if Adobe really did want to directly sell on your photos? Are there no circumstances in which you’d sign up to those original terms?

After all what are your photos actually worth? Be honest now. When was the last time an agency got in touch to ask if you had a great picture of a penguin at dusk or a rotting apple? Of course you might happen to have just what they want on your hard disk but without an intermediary site the sale would simply never happen. In other words: you wouldn’t actually be losing anything real.

But clearly Adobe would be gaining (assuming that anyone ever did buy one of your images) and that’s not fair. But it’s gaining already through those paid-for links and no-one minds about that. And remember you actually want Adobe to gain if it’s not coming out of your pocket.

OK but if Adobe gains you should too – and directly. Agreed – but what? On reflection, the answer is obvious: unlimited storage. If I had to choose between shelling out actual cash to get the clear benefit of unlimited storage – currently $25 per year on Flickr – or giving up a purely theoretical right to commercial usage that simply wouldn’t happen otherwise I might well choose the latter. If enough others did too Adobe would quickly build up an enormous stock photo resource and, with it, another relatively painless model for generating revenue to help keep providing a valuable service for free.

More to the point it would also enable its members’ photos to reach a wider audience. Isn’t that what photo sharing is for?

8. Use of Your Content. Adobe does not claim ownership of Your Content. However, with respect to Your Content that you submit or make available for inclusion on publicly accessible areas of the Services, you grant Adobe a worldwide, royalty-free, nonexclusive, perpetual, irrevocable, and fully sublicensable license to use, distribute, derive revenue or other remuneration from, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content (in whole or in part) and to incorporate such Content into other Materials or works in any format or medium now known or later developed.

You don’t have to be a lawyer to see that basically you were handing over your all rights as originator and giving Adobe free rein to make money from your photos however it saw fit!

Adobe responded quickly to dowse the inevitable flames with John Nack quoting the PSX team as saying “The original terms of service implied things we would never do with the content within Photoshop Express.” More importantly the relevant terms and conditions were quickly updated and are entirely different and much more end-user friendly in all ways.

So is that the end of the matter? Well it certainly means that the conditions are no worse than those commonly found on photo sharing sites such as Flickr and so should be no bar to joining up to Photoshop Express and taking it for a spin (it’s well worth a look if only to see what modern Flex-based RIAs are capable of).

However is this a case of “there’s no smoke without fire”? After all you don’t normally leave lawyers to just come up with something off the top of their heads (expensive) and then post it up to see if anyone complains (very expensive). And did no-one at Adobe think of looking at how other photo sharing sites managed copyright before launching such a major new service?

Moreover, while the Terms and Conditions have been updated, at the time of writing, the Photo Express FAQ still reads:

“What rights do I have to my photos?”#! Excuse me – splutter – but that phrasing is just bizarre. To my mind the implication is that having transferred all rights going to Adobe I now need to be told which rights Adobe is kind enough to let me retain.

Am I the only one that’s not entirely convinced that this all an innocent mistake but smacks of something a little bit deeper like a planned policy?

But before I get accused of an anti-Adobe conspiracy theory, I’ll float another question that I intend to return to shortly in a follow-up post: Are there really no circumstances in which you’d be happy to sign up to those original terms?