January 20, 2011 | By corynne mcsherry

Know Before You Go, Part 2: Burning Man Improves Ticket Terms But Retains Takedown Powers

At EFF, we like to give credit where it is due. Over the past few years, we’ve repeatedly called out the Burning Man Organization (BMO) for using online ticket terms to require participants to assign to BMO, in advance, the copyrights to any pictures they took on the playa. The assignment was designed to allow BMO to send takedown notices under the Digital Millennium Copyright Act (DMCA) if it discovers photos online that it finds objectionable. We also criticized how the terms limited participants’ ability to donate their works to the public domain or to license their works through Creative Commons, and restricted ticket holders' ability to make fair uses of BMO trademarks, such as the (trademarked) term "Burning Man," on any website.

Our comments sparked a small uproar in the Burning Man community, which eventually led to a series of conversations (some of which involved EFF) about Burning Man image use policies. Those conversations have at last borne fruit: Tickets for the 2011 event just went on sale, accompanied by new terms that were intended, in part, to acknowledge the concerns we had expressed. We’re happy to report that BMO has made some real progress. However, we have to admit that we're disappointed some very onerous terms remain.

The new terms make some important improvements. For example, they specifically authorize participants to share their works under a Creative Commons Attribution-NonCommercial-ShareAlike license (by-nc-sa). They also state that participants are free to make fair uses of Burning Man trademarks. And they clarify what it means to make “personal use” of one’s images.

We are less sanguine about BMO’s new approach to DMCA takedowns. Rather than requiring users to assign their copyright in their pictures to BMO in advance, the terms now appoint BMO a joint owner in the photos. While cosmetically more palatable than simply taking exclusive ownership, this new legal maneuver does nothing to tackle the real problem: BMO can still send out DMCA takedown notices at will, which means it can censor a work without bothering to even consult the author.

In addition, BMO still reserves the right to demand that participants take down their images “for any reason whatsoever in Burning Man's sole discretion.” Thus, while the contract includes a detailed statement discussing the principles behind BMO's image use policy (e.g., battling the commercialization of the event), the organization refuses to commit that it will only demand that images be taken offline when those principles are violated (e.g., purely commercial uses). And while it has now offered to notify participants if it decides to sue on their behalf, BMO will only extend that basic courtesy if (1) it just happens to have the person’s contact information; and (2) it actually files a lawsuit (meaning, no notice if BMO is just exercising its DMCA censorship powers).

All told, Burning Man deserves credit for revisiting its policies and taking significant steps toward bringing those policies in line with its commitment to promote a “society that connects each individual to his or her creative powers.” But it’s too bad the organization was unable to give up its takedown powers. As we noted last year, a benevolent censor is still a censor—and BMO may not always be so benevolent. And we continue to fear that other event organizers will follow suit, and that assignment and abrogation of rights will become standard terms in all online contracts. This is not a place where BMO should be exercising leadership.

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