To abuse a cliche: After I got a full night’s sleep, it seemed like a bad dream. But another YouTube clip gone up overnight from my friend and past collaborator Robin Bell corroborates the reality of it all.

Yesterday DC was hit with a snowstorm that we’re now told ranks higher than anything in 70 years, and which brought the most snowfall in December in the city ever. Grocery stores were emptied, places shut down, people were forced to stay home or into the streets (so few sidewalks were even given one attempt at being shoveled), bars were packed with snowbound locals. It had the air of a “snow day,” an extra day off because of the weather, even though it was a Saturday. The city went a little nuts.

But apparently no-one could out-do a certain Detective Baylor of the Metropolitan Police Department.

Now I don’t know all of the details, I never actually saw an announcement first-hand, but I hear that some of the same folks who’ve organized some past public group activities in good fun — a public pillow fight, the “Tweed Ride” perhaps — were also involved in organizing a snowball fight at 14th and U Streets yesterday. (Update: The Washington Post appears to have found the original organizer. Where the Post story differs significantly, I hold to what I saw or didn’t see.)

I had prepared to haul a large tripod down into Rock Creek Park and to the National Mall; my own sort of expedition, with a friend playing chauffeur and photographer’s assistant, to capture the blizzard conditions. We invited a third videographer friend along who told us of the snowball fight. After reassessing the roads and finally realizing the little 2-wheel-drive hatchback we had might not really make it out of the park, we went to see the snowball fight instead.

When we got there it was well under way. Two factions like opposing 19th Century armies were lined-up along 14th Street just north of the intersection with U. From what I could see, when the rare vehicle made it through the intersection, snowball fire died down or it was purposefully arced up over the cars and thrust to the other side of the street.

Most battle techniques seemed to involve small vanguards surging forth from one side or the other and attacking at closer range — something not palatable with the threat of a car bearing down on you.

It looked like a mess, it looked like fun, it looked like a small faction of anarchist anti-war protesters had joined-in and tried to make a point with their banner “no war but snowball war.” At one point some of the participants stopped to help a police car trying to make a u-turn.

Now with every event, there are some tone-deaf participants and maybe the people who inadvertently helped change the course of the afternoon were such: At some point a small group of people, mostly on the east side of the street, mostly on the south end of that stretch of people, decided to throw a few snowballs at a maroon Hummer stopped at the intersection.

Snarky? Yes. Constructive? Not if you’re looking for a dialogue between the driver and the crowd that would result in world peace and less carbon emissions. Stupid? It’s harder and harder for me to say it wasn’t, but I’ll stick with maybe. Dangerous? Well, in hindsight… but no. There’s no way the Hummer was being hurt by snowballs. I think whatever groupthink was behind this forked-off action also expected the driver to leave, pissed-off, and they’d have their laugh.

But that’s not what happened. The driver got out yelling, gesticulating wildly, waving a walky-talky and you had to wonder, who was he? He didn’t say. He pointed into the crowd, which shouting and laughing back at him, a couple more snowballs might’ve taken flight in his direction. He gets hit. Suddenly, he’s waving a gun. Still no one knows who he is.

What I overheard from a cop later is that someone called 911 about a man with a gun at this point, and this is why more police soon arrived. Video I’ve seen and reporting by Jason Cherkis at the Washington City Paper seems to corroborate what I’ve overheard.

At this point the mood has changed. Everyone knows there is a man with a gun and the snowball fight is now an asymmetric battle of sorts: The man with the gun weilds deadly power and the crowd knows that, whatever and whoever started the confrontation, this is wrong and they maintain resistance. They won’t be cowed.

By the time more police arrive, the gun as been reholstered, and an officer — who responded with his own gun drawn (given the context, that made a little more sense) — is directed to the big man in the big coat with a gun on his belt, it is revealed that he is Detective Baylor. The officer seemed confused and defensive, in an obligatory sort of way but tries to de-escalate things. He’s more civil and more even-toned, if a little clueless about what just happened.

But Detective Baylor isn’t satisfied, and doesn’t see cause of the indignance on the side of the snowball fight participants — even if some of them started it. He keeps yelling, he gets up in peoples faces, and he lunges into the crowd — going in many feet, through many ranks of people — to yank out someone he thinks threw a snowball at him. The man is dragged out to the hummer and people shout “he didn’t do it!” The crowd rallies and the chants become political. Somehow DC Mayor Adrian Fenty gets pegged for all of this, “Fenty killed Christmas!” shout some in unison.

It’s fuzzy what happened next, but I don’t think anyone got arrested, just detained briefly. The detective drives off to shouts of good riddance and victorious chants by some of the snowball fight participants — but the event is over, the crowd has lightened some. The word goes out that there was another snowball fight in Dupont Circle, which seems like a better venue anyway, but few seemed to go. (Eventually my fellow photographers and I headed over there to find it had died-down by that point.)

As I wandered around, trying to get my bearings on what, if anything, was still happening, I heard one uniformed officer say that whoever threw snowballs at the Hummer was stupid, but the detective was too. “He sounds like an ass,” he said.

On a radio on a uniform’s belt I heard Detective Baylor’s name, and someone say “they hit his car with snowballs and now they’re trying to blackmail him,” presumably a reference to those who angrily declared they wanted to see Baylor fired.

I’m not sure how everything ended — as of this writing, I’m not sure it really has yet.

A sort of FAQ about what I observed

These are brief responses to rhetorical questions I’m setting-up for myself based on what I’ve actually been asked and see in comments through the media that have reported this.

Were you a participant in the snowball fight?

No. I went to observe it, photograph it, on my way to other activities.

Were the participants “kids?”

Maybe some, if you mean people under twenty-one or under eighteen. But it looked like a twenty-something crowd and some people could easily have been bracketing thirty years old. These were mostly adults.

It was a bunch of white people, wasn’t it?

No, the crowd was not that homogenous. I don’t think it is as simple a black vs. white. But I do see how the general nature of this event and the relationship between most of its participants, the rest of the neighborhood, and the police is a dynamic of gentrification and all of the issues tied into that — among such issues, I’m sure, are some identity politics.

Were they throwing snowballs at random cars?

Not as far as I could tell. I did not see the beginning of the snowball fight, but from what I saw the crowd over all was pretty civil, while engaging in the fun they publicized well. Only a small group of people chose to target this particular maroon Hummer.

Were they throwing snowballs at random strangers?

Again, not that I saw.

They were having a snowball fight at a busy intersection?

The intersection of 14th and U Streets NW is typically busy and I also wonder about the choice of location. The other, unrelated, snowball fight that was happening in Dupont Circle seemed to be better placed: an accessible and central location with its own space to contain the battle. But the intersection really wasn’t all that busy given the weather conditions. It seemed its busiest after police vehicles arrived, responding to a call about a “man with a gun” (the unidentified detective).

Update: I corrected this post on 21 Dec 2009 to reflect that the source of the snowballs aimed at the Hummer came from the east, not the west, side of the street.

Public Knowledge has blogged about this tonight.

I had the privilege of speaking with Sherin Siy earlier today and I appreciate Sherwin Siy’s point of view and his critique of both the situation as we understand it, and of my take on the situation.

I tend to agree with the paraphrasing of Lawrence Lessig that it doesn’t make sense to press copyright too far or all the time when it comes to political speech. But, as it was also noted, my particular photo is not essential to the “dialogue” happening here. It doesn’t make sense to abuse the terms that I’ve willingly shared this work under. And I feel I’ve been deprived of the reserved right to grant permission under other terms to use it further than the chosen Creative Commons terms allow.

I am trying to practice my belief in a “tool” that actually factilates sharing, that strikes a balance so that political speech and other dialogue can benefit from shared culture, from reuse and remixing and inherently maybe even be more constructive when the rules of the Commons are followed. I am trying to strike a balance between that and developing and sustaining my photography.

As I inspect my images closer, and the ads, it appears they may be using one or a couple similar images of mine taken from the same vantage point at about the same time. But that they are my images, unique to this event, remains clear – the angle of the photo, the angle of light, the apparent focal length, the basic nature of the exposure, the matching of key features of the expression, is all consistent with this event and my unique point of view.

The photo is one of several I took of Murtha in profile at a town hall in Virginia in 2006, listening to the public talk about the Iraq war and the Bush Administration. The scene was a packed room, full of people with 9/11 memorial t-shirts, American flags, comprising of local constituents that included veterans and Defense Department employees. There were peace activist veterans and veteran peace activists alike. Murtha’s scrunched facial expression as depicted in my photo is one of concentration and attentiveness (something you might derive from seeing the whole set and knowing about the event). In the ad it is reduced to a context-less scowl coupled with something else entirely.

I share many photos on Flickr under Creative Commons licenses and this photo is one of those. The Creative Commons is a way of using copyright to share material while retaining rights as one sees fit. It is a philosophy for using copyright constructively.

The license I chose was the “Attribution-Noncommercial-No Derivative Works 2.0 Generic” license, and the conditions are boiled down to the following points:

• Provide attribution
• No commercial use
• No derivative works
• And, of course, make clear the terms under which the CC-licensed work being used is available to others as well.

It seems obvious to me that the Russell campaign’s production people didn’t give proper attribution in the video or elsewhere, nor did they make the terms of the license clear in redistributing my work. They’ve manipulated the background of the photo further taking it out of context, which I believe constitutes a derivative work, and while this isn’t commercial speech, they did use the ad as fodder for fundraising. Depending on how the ad was created and the relationship between the producers and the campaign, I kind of wonder if the “commercial use” restriction wasn’t still violated (but that is speculation).

I don’t like the implication that I gave the Russell campaign permission beyond the limitations of the license I gave to the public. I’m trying, whenever I feel it appropriate, to share my photos with the commons to support the kind of substantive media and dialogue I believe in (even if I disagree with a given argument) and I am trying to be able to do more media making. Inappropriate use of my work undermines this.

This morning I woke to see, upon closer inspection of the web site, that my image is being used in other promotional content on the campaign site and in another spot, “The King of Pork” ad.

I didn’t react publicly right away last night because I reached out to friends who know lawyers and to Public Knowledge for advice first. I got the beginnings of advice this morning. I’ve written Russell’s campaign to ask them to stop using my work beyond the bounds of the Creative Commons license and I’m interested in finding out what more I can do.

I feel like I should say I am also all for fair use (an implied right that long precedes the Creative Commons) but I don’t think this fits. Others have agreed.

I don’t know yet if they’ve run these ads on TV, but they appear to want to and they have gotten a sizable enough views on YouTube for a congressional race.

I would hope that when Creative Commons works are used properly in any kind of speech the public would understand such use is not the same as endorsement by the original creator. By not following the rules of the Creative Commons license, Russell’s ad leaves people to reasonably conclude an endorsement by me if they happen to recognize the photo or find it elsewhere, properly attributed. Ben’s message to me last night was an example of such an inference – that I had somehow collaborated with this campaign – being drawn by a complete stranger.

I could imagine Creative Commons-supplied works figuring into constructive mainstream political volleys some day. Where dynamic and well-attributed and linked remixed works themselves could be maps to the nuance and reality of the political scene, via which deceit and inaccuracies could be routed out by tracing the component parts of these works.

This misuse is an example of diminishing the productive uses of copyright, of the commons and I find this a threat to democracy (however important this small example is or is not). The consequences of stomping across the commons could become quite significant if people become afraid to share their work, particularly if like much of mine it is documentary in nature, because they’re afraid it will be unattributed, taken out of context, or worse.

By documenting this publicly, I’m not implicitly defending the comments by Murtha that the first ad is ostensibly criticizing. I personally have fundamental disagreements with Murtha’s hawkishness, nevermind the pork end of his role in defense spending. To be frank, I doubt I agree with much of Murtha’s or Russell’s stated positions or their track records overall.

The way Carvin tells it, he was first asked what he was doing and left alone, seemingly with permission, to go about his business. Then security returned giving conflicting messages about what he could and couldn’t do, and why (read his account). He was threatened with arrest multiple times. After pressing for a coherent explanation and to talk to bosses, he still had to pack-up and leave.

Before I express my solidarity, I do want to say Carvin should not have been surprised that he’d get some trouble: The Gigapan requires a tripod and rules against tripods have been common for a while, well before the so-called post-9/11 era.

Aside from security issues, more mundane rules and bureaucratic measures that require special permission for some photography in the name of safety and congestion have been in place for some time in many public and private spaces, particularly in Washington, DC. If one is going to use a tripod and is involved in any sort of media making, they should expect to be challenged by those responsible for the space if nothing is pre-arranged. I do think such policies are sometimes questionable and are often arbitrarily enforced but as an employee of NPR, he might have more easily obtained special permission to use his tripod. That said, the conflicting permission and conflicting reasoning Carvin recounts sort of balances that out.

Fundamentally, I think indignance over this treatment is justified. Often in the name of security, and sometimes in the name of private property, civil liberties are aggressively curtailed by security officials who often seem to know less about the rules they’re apparently enforcing than the bill of rights some of them (at least when they’re police) are sworn to protect. That isn’t saying much.

I have witnessed and experienced similar situations myself.

In Washington, the hostility towards photography in open spaces by tourists and amateurs, even members of the press and others seems particularly intense. On Washington’s metro system I’ve been approached by police and asked to show them the photos I had just taken. Another time, I was told I could not take a photo in the Metro because there was an elevated security level — but the rules publicly available did not back this up.

Often I was subject to scrutiny while others who were taking pictures were not. The only discernible difference I could imagine is that I often carried a Digital SLR camera body — so I either appeared professional (still not a crime) or somehow more competent (not a guarantee by any means) and the nature of my photography was apparently supposed not only to be different (a weak assumption) but extra-legal (false).

This year in Union Station, while I photographed an anti-war flash mob, I saw videographers get repeatedly approached by Amtrak police and suited officials and told they could not film. Enough seemed to challenge, in front of enough witnesses, that the authorities seemed to relent.

In 2002, while covering World Bank and anti-war protests as a then-contributor to an incarnation of DC Indymedia (which had been recognized by DC’s police department — which took our applications and had just begun to issue credentials to many of us) and collaborating with the DC Radio-Coop (a project of organizers with Washington’s Pacifica station WPFW and DC Indymedia), I was swept up in a mass-arrest. Other other press, legal observers, medics, passers-by, and demonstrators — were all illegally arrested. I’ve been shown video of cops pointing to me, and arresting me out of sequence from the crowd they corralled after I had held my camera up above my head in trying to get shots of the arrests at the other end of compressed block of people I was in.

I spent hours in buses and hog-tied on mat, spending time with AP, Newsweek, and Magnum photographers. All but the Magnum photographer and myself got released early, apparently after negotiations between their employers/sponsors and the authorities. When those who could be were contacted, all those who were sprung early with the help of their boss were reluctant to join a free-press oriented lawsuit a credentialed videographer and I tried to organize. Eventually we joined a different suit that included protest participants, which the Magnum photographer also eventually joined coincidentally, and we settled without pressing the issues specific to our journalist status. The Committee to Protect Journalists included mention of the arrests in a press release.

It isn’t just Washington, DC, though: After Boing Boing picked up on Andy Carvin’s story, they shared a couple more similarly themed accounts from the Los Angeles area, one involving the FBI.

Similar instances of arbitrary rules or baseless enforcement of allegedly applicable rules or laws regarding photography have been reported on in the past too. Including twice in the past couple of years where the New York City Metro Transit Authority and the city government was subject to a public backlash after the respective authorities expressed the intent to implement more restrictive rules on the basis of security and public safety.

The example of Union Station raises concerns both about the civil liberties associated with photographing that which is plain view to the public, and the encroachment of civil liberties in general by places that seem public but which are not. This isn’t always a factor of increased privatization of what was public. Sometimes the entities that own or control certain spaces that were always technically private and [mis?-]understood to be public seem to exploit the murkiness of places that are — by most perceptions — seen as public because of their association with public spaces and public or government-subsidized services.

I know there are lawyers will say my qualifiers are going too far, but when we’re talking about subsidies, public-private corporations, and hubs of public services, I think the equivocation on the “privateness” is deserved. In the case of Union Station, I’m talking about Amtrak and the Washington Metro system.

This is likely to get edited for clarity and updated for the addition of sources after I get some sleep and Twitter comes back up.