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EFF Says Burning Man Usurps Digital Rights 439

Hugh Pickens writes "In a few weeks, tens of thousands of creative people will make their yearly pilgrimage to Nevada's Black Rock desert for Burning Man, an annual art event and temporary community celebrating radical self expression, self-reliance, creativity and freedom, but EFF reports that the event's Terms and Conditions include 'a remarkable bit of legal sleight-of-hand.' As soon as 'any third party displays or disseminates' your photos or videos in a manner that the Burning Man Organization (BMO) doesn't like, those photos or videos become the property of the BMO. BMO's Terms and Conditions also limits your own rights to use your own photos and videos on any public websites obliging you to take down any photos to which BMO objects, for any reason; and forbidding you from allowing anyone else to reuse your photos. This 'we automatically own all your stuff' magic appears to be creative lawyering intended to allow the BMO to use the streamlined 'notice and takedown' process enshrined in the Digital Millennium Copyright Act (DMCA) to quickly remove photos from the Internet giving BMO the power of fast and easy online censorship. 'Burning Man strives to celebrate our individuality, creativity and free spirit,' writes Corynne McSherry. 'Unfortunately, the fine print on the tickets doesn't live up to that aspiration.'"
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EFF Says Burning Man Usurps Digital Rights

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  • the BMO (Score:5, Insightful)

    by FudRucker ( 866063 ) on Thursday August 13, 2009 @08:46AM (#29050353)
    just shot themselves in the foot, what better advertising is there than participants showing what a great time they had at the event...
    • Re:the BMO (Score:5, Insightful)

      by Anonymous Coward on Thursday August 13, 2009 @09:27AM (#29050869)

      Bah - BM does not need your puny advertising.

      Media control makes sure that Black Rock City does not turn into a venue for the "girls gone wild" film crews. It's also part of the framework that allows BM Org to function on behalf of people when private footage ends up being used in such a manner.

    • Re: (Score:3, Insightful)

      Not quite. They can choose which pictures to leave up or take down. They're free to claim whichever photos they like, and encourage the dissemination of the ones they do. This is not what copyright is for.

      There's no significant financial benefit in owning these pictures, so I can only agree with the summary: this is for censorship and nothing else.

      • Re:the BMO (Score:5, Insightful)

        by postbigbang ( 761081 ) on Thursday August 13, 2009 @09:40AM (#29051071)

        And if you do digg searches on BM photos, you'll see they hardly ever exercise discretion.

        There are many BM participants that plainly don't want the world to see them nude, or having what's a potentially lascivious time. That's their right and a good protection to have fun without the PTA burning you at the stake. Here, the EFF has crossed the line. Imagine all the people in the Human Carcass Wash being exposed for the world to see. That's not what BM is about: outing behavior that's otherwise 'just fine' at the event.

        People have more freedom at BM than the 'default world' and should have the right to protection, and the event should be able to control it. Privacy trumps someone's right to masturbate or express other moral outrage to pictures of strange things at BM.

        • Re:the BMO (Score:5, Insightful)

          by IronSilk ( 947869 ) on Thursday August 13, 2009 @12:51PM (#29054167)
          Agreed--having a restrictive and enforceable media policy protects the self-expression inherent in Burning Man--even if it's not enforced all that often, if I find an online picture of me that captures a moment I would prefer live only in my memory, I can ask BM to ask for it to be taken down. I like that protection. Also, the media restriction is in the spirit of Burning Man--encouraging people to participate, to live in the moment, rather than recording the moment for some later moment. At Burning Man, it's better to dance than to take pictures! And if someone is serious about recording Burning Man, they can make special arrangements with the organizers--AND they have to follow some basic rules of politeness, which many of the default world media-lites seem to have abandoned.
    • by Lesrahpem ( 687242 ) <> on Thursday August 13, 2009 @10:02AM (#29051413) Homepage
      A place in my area does something like Burning Man on a much smaller scale every year, and they too use a policy like this. I happen to know the organizers of the event in my area and I asked them about this sort of policy. It's not what it seems. The reason for the seemingly underhanded legalize has to do with people using drugs at the event.

      Basically, if someone takes pictures which could "let the word out" this enables the organizers to take down those pictures and control the information, so the cops aren't up everyone's ass every year. This has worked for the last five years, and as a result it's fine and encouraged to smoke pot and drop acid all weekend long, even in front of event security (they do it too). I don't know if this is the same reason Burning Man does this, but it would make a LOT of sense.
      • Re: (Score:3, Funny)

        by operagost ( 62405 )

        This has worked for the last five years, and as a result it's fine and encouraged to smoke pot and drop acid all weekend long, even in front of event security (they do it too)

        I wouldn't think that hallucinating security personnel would be very effective.

      • Re: (Score:3, Funny)

        by Demonantis ( 1340557 )
        If legality is all it is then that is completely acceptable and they should amend their terms to state specifically that. Why do they need to use an umbrella when a rain coat will do just fine? If they said that pictures of illegal activities are controlled it would do exactly the same thing then and not have far reaching effects. Also, what right do they have to enforce this ownership. This is an unusual claim for these types of events. Most people could argue that this is inconsistent with expectations a
    • by Anonymous Coward on Thursday August 13, 2009 @10:02AM (#29051431)

      Burning Man implements a Temporary Autonomous Zone [] (TAZ):

      The concept of TAZ was first put into practice on a large scale by the Cacophony Society in what they called Trips to the Zone, or Zone Trips. One of their Zone Trips gave birth to Black Rock City, also called the Burning Man Festival.

      One of the essential supports for a TAZ is to ensure participants that their temporary experience - which can greatly differ from normal life - be temporary, rather than permanent. People do all sorts of crazy stuff at Burning Man. That self-expression is easier because they know that photographs and videos of their experience will be handled in a particular manner - for example, not taken and turned into a motion picture.

      If you don't agree with BMO's photo and video terms, then you don't understand the concept of a TAZ.

      • by synthesizerpatel ( 1210598 ) on Thursday August 13, 2009 @11:23AM (#29052865)

        Very well put. Wish I had mod points for you because this is the most important point.

        The biggest irony here is that the EFF talks about protecting privacy.. and BMO's policy here is to protect the privacy of participants.. not to stifle creativity.

        Out of all the things the EFF could be focusing on, this is the least important 'threat' to anyone's digital rights that I can imagine.

        Can I get my donation for this year back?

    • by afxgrin ( 208686 )

      I imagine it has more to do about protecting attendees from having unwanted photos posted all over the Internet.

      But whatever, I'm not psychic, and don't know any Burners involved behind organizing the event, but this is just a guess.

      I'm sure they don't need increased advertising of their event, everyone knows what they're about and word of mouth is doing just fine.

      I personally wouldn't care if there's a photo of me smoking a joint at an event like Burning Man, but I imagine for some other people this could

  • by A. B3ttik ( 1344591 ) on Thursday August 13, 2009 @08:54AM (#29050451)
    My assumption is that they ask/force people to take down images and videos that show extremely reckless illegal activity so as to keep the Powers-That-Be from having evidence to get the event shut down.
    • My assumption is that they ask/force people to take down images and videos that show extremely reckless illegal activity so as to keep the Powers-That-Be from having evidence to get the event shut down.

      And that's a bad thing?

      • by A. B3ttik ( 1344591 ) on Thursday August 13, 2009 @09:44AM (#29051111)
        I'm not really passing moral judgment on their censorship. I understand that people have to protect their own asses, especially in today's day and age. But you cannot deny that it does have some negative effects. It keeps people from expressing themselves in the form of pictures and movies on their websites that they would otherwise be free to share. Again, whether this is justified or not... I'm not really making any call beyond an implicit passive condoning by refusing to care.
    • by cger68 ( 942662 ) on Thursday August 13, 2009 @09:49AM (#29051205)
      "My assumption is that they ask/force people to take down images and videos that show extremely reckless illegal activity..." Agreed, for the most part. IANA lawyer, but I did just read the T&C's here: [] They make it pretty clear that pics/video you take (and even post) for PERSONAL use is all well and good. They don't seem interested at all. It's the NON-personal ($$$) stuff they're getting uptight about. In other words, "don't make money using our name without letting us know so we can wet our beak too." And the third party stuff reads like this: "If you put your stuff on YouTube, and someone grabs it and puts it in a documentary, we're going to sue those people." I dunno...maybe I'm oversimplifying here, but I don't have much of a problem with any of it...?
    • Re: (Score:3, Insightful)

      it should not (and does not) matter what their 'reasons' are.

      they are trying to own and control YOUR photos.

      this has to be stopped. bad precident to let corps take your rights away like this.

      I would not go to this in the past; but now, I FOR SURE won't even consider giving them my money.

  • by Scragglykat ( 1185337 ) on Thursday August 13, 2009 @09:04AM (#29050585)
    And here I thought it was about getting nude in the desert!
  • Protest (Score:5, Funny)

    by eclectro ( 227083 ) on Thursday August 13, 2009 @09:04AM (#29050589)

    Protest by setting fire to something. People will notice then.

    • Re:Protest (Score:4, Interesting)

      by cvd6262 ( 180823 ) on Thursday August 13, 2009 @09:24AM (#29050821)

      A few years ago an old-time participant set fire to "the man" a couple of days early. The organizers decried it as criminal vandalism and reported it to law enforcement.

      The hypocrisy was thick.

      • If you'll read about the arsonist that did it, you'll get more insight into what actually goes on at the event, and what the symbol of "The Man' means to people at the event.

        Yeah, it was fun to see The Man burn twice, but more ironic and paradoxical than hypocrisy. That guy was uniformly vilified by the participants, as well as the organizers.

  • by sdo1 ( 213835 ) on Thursday August 13, 2009 @09:06AM (#29050603) Journal

    IANAL, but....

    In the Nevada desert? State owned property? Then I doubt they have a legal leg to stand on. However, if it's on private property, then they can probably stipulate what gets done with the photos. Stupid? Yes. Legal? Maybe.

    Photographers, print this out and carry it with you at all times: []. It was written by lawyers who do actually know a thing or two about photography and the law.


    • I would imagine that their claim is that, by attending the event, you have agreed to the terms, namely signing over the rights to the footage. I think it's bullshit and, at some point, people are going to fight against this crap and put an end to it but, currently, they can put something like this on their ticket stubs and, if you attend the event, it's legally assumed you've agreed to those terms.

      Total bullshit though. People keep fighting for the "rights of the artist" but I have yet to see anyone actua
    • Thanks for posting this -- I've always wondered if I needed permission to take pictures of old barns and buildings on private property. So long as you're on public property while taking the photos, then you're good to go.
    • Re: (Score:3, Informative)

      Even if it's private property, the most they can do is kick you off and forbid you from coming back on. They can't confiscate your camera/photos nor can they tell you how you can and can't use those photos. They certainly can't suddenly claim copyright ownership on your photos. BMO is claiming rights that they simply don't have.

  • by Lumpy ( 12016 ) on Thursday August 13, 2009 @09:06AM (#29050605) Homepage

    I stopped going to burning man years ago when it became a commercialized corporate mess.

    Burning man today is not what it was 10 years ago.
    today it's a brand to be protected, an event to sponsor.


    • by rockout ( 1039072 ) on Thursday August 13, 2009 @09:10AM (#29050643)
      I went to Burning Man in 99 and 2000. At the time, a bunch of people were complaining that "Man, Burning Man today isn't what it was. Now it's all corporate and shit."

      Sorry, I'll get off your lawn now.

      • Same as with any organised event, I've been along to and involved with the Edinburgh Beltane since 1991 (it started in '88) and people have always said the same thing "it's not what it used to be". Problem with organised events is that it boils down to somebody taking the rap if things go wrong so rules get put into place so no organiser gets personally sued when an idiot throws petrol on a fire (with the usual consequences), or deals have to be struck with the authorities to let some shape of event go on (

    • by Yvan256 ( 722131 )

      You should start your own event. Burning burningman.

      • Re: (Score:3, Informative)

        by Lumpy ( 12016 )

        The correct name would be BurningLumpy.

        Problem was the event attendees took it literally. I was chased around for 12 hours by naked painted people with gasoline and torches...

    • Uh, no. There are no sponsors, there are no logos (except humorous art logos). It's still a gifting culture. The only thing that's really changed is the limitation on firearms and pets. I kind of like not hearing the sound of AK-47 clips at 2am above the sound of various drum cultures.

    • by afxgrin ( 208686 )

      Is it on par with what Woodstock 99 was? Cause that was a crazy commercialized corporate mess. Maybe more like Lollapolooza?

  • Is it even valid? (Score:5, Interesting)

    by 91degrees ( 207121 ) on Thursday August 13, 2009 @09:15AM (#29050697) Journal

    How do you know you've agreed to the waiver if you haven't read the waiver? Surely if you buy tickets over the phone, (unless they explicitly ask you whether you agree to the waiver) neither party can reasonably expect that you've read the waiver.

    And that's assuming this clause is even valid, which I think seems unlikely.
  • by east coast ( 590680 ) on Thursday August 13, 2009 @09:16AM (#29050699)
    Just start your own Burning Man.

    Burning Man isn't a sacred rite. It's a bunch of people who get together and decide to be goofs for a week. Nothing is stopping you from doing the same. I might even join you.
    • Re: (Score:2, Insightful)

      by stupid_is ( 716292 )
      You'll probably have to call it something different - BM is likely trademarked.

      Maybe Smouldering Man (TM)??? A bit more evocative, too :)

  • is less about rewarding creators and more about corporate control of OUR culture

    at this point, i am leaning towards "fuck you" to creators, as long as our legal system has an inability to differentiate between corporate distribution channels and actual creators

    creators: i'm sorry your grandchildren can't live off your one hit wonder. i'm sorry you won't be a billionaire for "inventing" shamwow. but you can still get a great job as a respected engineer and you can still get great money from touring. sorry, thems the breaks: get to work like the rest of us dumb shlubs

    the original idea that guided the creation of the notion of intellectual property: rewarding creators, has been completely corrupted as a way to reward distributors. the legal goon squads make sure actual creators get less $, and consumers fork over more $. in a preinternet world, distributors were necessary, but this is a scenario the internet has destroyed. now distributors are just unnecessary parasites. its called disruptive technology for a reason. it has disrupted the technological grounds upon which the rewarding of distributors works. all that remains is pushing the stake into the vampire's heart

    intellectual property has betrayed its philosophical underpinnings, and we, the people, who are supposed to be the ones in charge, now have a duty to do our best to ignore, and/ or detroy intellectual property, since the legal system, which is supposed to serve us, serves corporate masters beholden to nothing but more cash for less reason

    intellectual property law is still effective across the land because of legal goon squads, but philosophically, it is defunct, and you should ignore it... at the peril of the legal goon squads, but not at the peril of your conscience. it is at the peril of your conscience that you continue to believe in intellectual property

    • by mcgrew ( 92797 )

      is less about rewarding creators and more about corporate control of OUR culture

      True, and sad. Funny how the constitution stipulates that "authors and inventors" have a temporary monopoly, and not lifetime ownership that they can pass on to their decendants or sell to a publisher. If you're not an author or inventor, you're not supposed to hold a patent or coyright in the US. Too bad the constitution has become meaningless, making almost every law on the books meaningless.

    • I'm sure creators have already leaned towards "fuck you" themselves. I'm sorry that you can't get everything at a price that you want, when you want, and how you want, but you can still just buy the damn thing, or not. Sorry, them's the brakes: pay for the work of others that you use.

      The original idea of championing individual rights has been completely corrupted by greed and affluence. The hoard of self-justifying pirates make sure that the actual creators get less $, and consumers fork over more $.


      • Re: (Score:3, Insightful)

        by Jesus_666 ( 702802 )
        Actually, there is a better alternative to copyright. It's called copyright. The problem with current IP laws is that once something is protected, it's protected forever (yes, theoretically there are limits but as lone as the Walt Disney Corporation can afford to buy reps they are going to be expanded indefinitely). We get a weird situation where, for example, much of Disney's money comes from derivative works (the brothers Grimm are a common source of material), yet others can very rarely use them as a sou
  • by evilandi ( 2800 ) <> on Thursday August 13, 2009 @09:17AM (#29050725) Homepage

    Whilst there are probably a dozen practical and legal reasons why this probably isn't enforceable, the one that immediately springs to my mind is that Burning Man is taking place in a Black Rock Desert [], which is government-owned and criss-crossed with historic trails open to the public. There are likely to be large areas of Burning Man which are visible from these public areas, and thus, according to Kantor's Legal Rights of Photographers [] (PDF), open to photographer to take photographs from as they see fit, without restrictions.

    • by postbigbang ( 761081 ) on Thursday August 13, 2009 @09:53AM (#29051273)


      The area is leased to the organization. As a leaseholder, they can encumber you by the terms of the ticket. Your argument doesn't hold water in this controlled-access event. There's a perimeter fence that would thwart even really cool telephoto lenses. There are even NOTAMs for flyers that would like to buzz by.

      • Re: (Score:3, Insightful)

        by Pecisk ( 688001 )

        Nope for you too.

        It doesn't change the fact that it is a public place (bars, pubs, restoraunts are has controlled access too, but they are public places in same time). As if you have got your camera into the concert where cameras are forbidden, get home and publish photos of naked soloist, thought luck for management and PR, but you OWN pictures you made.

        And as some slashdotters already mentioned, this right can't change ownership automagically just because someone doesn't like it. However, you COULD have p

  • by EllisDees ( 268037 ) on Thursday August 13, 2009 @09:18AM (#29050737)

    Sorry, BMO. Any pictures that I take are mine. You can get stuffed if you don't like them.

    • Re: (Score:3, Informative)

      this is like the many stories of rent-a-cops telling photogs that they can't take a pic of this or that building.

      or mall cops who tell you you can't shoot inside the mall.

      the most they can do is tell you to stop and escort you out.

      they CANNOT ask to see your photos (ie, you are not compelled to give them any views)
      they CANNOT ask to have your memory card (only police can do that and even then, its iffy)
      they CANNOT take ownership of 'all photos you take'.

      they can ask you to leave (early) but they can't take

  • They wouldn't want those DMCA powers in order to take down pictures of people engaged in activities like ... drug taking. A friend who went to a Burning Man festival said that most people he encountered there seemed to be whacked out on Ecstacy.

  • by bmo ( 77928 )

    I've been using this since 1986. Do I get to sue BMO?


  • by russotto ( 537200 ) on Thursday August 13, 2009 @09:39AM (#29051051) Journal

    Step 1: Buy tickets by phone

    Step 2: Take pictures they don't like
    Step 2a: Publish them

    Step 3: When they complain, bring up 17 USC 204a: "transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent. "

    (once again, no profit)

    • If the EULA/ToS for the event is listed before purchasing, I can see the argument that purchase of the ticket constitutes a signed agreement, especially if the EULA/ToS is printed on the back of the ticket. It's weak, I will admit it, but it seems plausible that would be an acceptable defense.

  • It used to be this great piece of hippy anarchy. When are people going to realize that lawyers and litigious thinking(it's not all on the Lawyers) are parasitic. They never contribute to anything they only destroy.
  • !story (Score:4, Interesting)

    by vegiVamp ( 518171 ) on Thursday August 13, 2009 @09:53AM (#29051257) Homepage
    Not really new, is this ? I remember JWZ blogging about this years ago. See
  • Good Reason For It (Score:5, Insightful)

    by Bob9113 ( 14996 ) on Thursday August 13, 2009 @09:58AM (#29051361) Homepage

    There is a good reason for it. Burning Man permits all sorts of non-standard behavior, including nudity. For people to feel comfortable in such an environment, photography has to be limited. For the most part this is not a problem -- real Burners ask before taking a person's picture. But there is a bad element that goes to Burning Man; the tourists. They generally arrive on Thursday or Friday, camera in hand, and start snapping pictures.

    Those pictures do two bad things: They inhibit people from acting freely, and they present the wrong image of Burning Man. It is not about nudity, but the daffy ducks with their cameras would make it look like it is; as they walk right past some of the most inspiring art in the world to snap a picture of a person who chose not to wear clothes that day. Keeping those pictures -- which misrepresent the event and are widely reviled by Burners -- off the Internet is a good thing.

    I am a hard-core supporter of the EFF, but this time they are wrong to judge. Burning Man is a community with certain standards. Making sure Black Rock City remains free -- in both the legal and the psychological sense -- is one of them. Much like the GPL or anti-trust laws, sometimes freedom is best served by restricting behavior that inhibits freedom.

  • All your photos are belong to us
  • by Anonymous Coward on Thursday August 13, 2009 @12:18PM (#29053703) would pretty thankful that BMorg's totalitarian, authoritarian, rights-usurping power grab on federal land is in place. Most folks that are up there are happy to have a safe space to get their freak on, and safe means not having to worry about some local TV station looking for titilating footage pointing their lens in your direction. Does that take away some of their rights? Sure it does. But it's a decision the the community made collectively, and one that is integral to maintaining the unique character of the event.

    TFA seems to imply that one can't take photos on the playa without BMorg tracking you down and hitting you with a DMCA take-down notice, which is patently false. Everyone takes photos at Burning Man, everyone goes on to post most of them all over the web. BMorg's policy is targeted toward commercial content.

    Don't get me wrong -- I'm no BMorg fan-boy. They're a bureaucratic and self-important bunch, but on this one they're right.

  • by istartedi ( 132515 ) on Thursday August 13, 2009 @12:26PM (#29053831) Journal

    [ ] Inherently over the shark right from the start--every counterculture is doomed to devolve into authoritarianism.
    [ ] left Bay Area
    [X] charging admission
    [ ] mentioned on Malcolm in the Middle
    [ ] guy burned the man prematurely and got in legal trouble for it

  • by Orphaze ( 243436 ) on Thursday August 13, 2009 @03:32PM (#29056315) Homepage

    I was under the impression that some of these stringent rules were put in place to protect participants, rather than limit their rights. IE, the organizers want people to be able to walk around naked without ending up on "Girls Gone Wild: Burningman Edition!" and use drugs without the possibility that their "crimes" may end up on the evening news.

"I shall expect a chemical cure for psychopathic behavior by 10 A.M. tomorrow, or I'll have your guts for spaghetti." -- a comic panel by Cotham