A Quick Update on the Display Right

In a recent post, I described how the “server test,” established in the Perfect 10 case, obliterates the display right for visual artists on the internet. I further opined that the “server test” is an irrational standard and also stated that Perfect 10 may not be the final word on the matter. For recap, the Ninth Circuit held in Perfect 10 that in-line linking (also known as “framing”) images on a website without actually hosting (i.e. copying) those images does not infringe the author’s right of public display.

A new case before a U.S. District Court in Dallas this month (The Leaders Institute v. Magnovo Training Group) entails several IP and non-IP disputes between the litigants, including copyright infringement of the display right by means of “framing” plaintiff’s images to make them available on defendant’s website.  I’ll spare readers the long-winded details about these parties and their various disputes because they are not germane to the copyright issue.  What is compelling about this case, and potentially good news for visual artists, is that Judge Jane J. Boyle said the “server test” doesn’t make any sense to her either.  Here’s how she put it …

“…to the extent Perfect 10  makes actual possession of a copy a necessary condition to violating a copyright owner’s exclusive right to display her copyrighted works, the Court respectfully disagrees with the Ninth Circuit.  The text of the Copyright Act does not make actual possession of a copy of a work a prerequisite for infringement. To display a work, someone need only

show a copy of the work; a person need not actually possess a copy to display a work. And to display a work publicly, a person need only transmit or communicate a display to the public. 

Again, the person need not possess the display. For example, a person that went into a movie theater and used a video camera connected to the internet to broadcast a movie to the public would clearly be committing copyright infringement even though the person did not herself have a copy of the movie. Essentially, TLI’s framing scheme is like a live feed of Magnovo’s copyrighted website.”

Judge Boyle’s opinion seems to better conform to common sense than the “server test.” If a party displays a protected visual work, whether by in-line linking or magical incantation, that action alone should implicate the right of public display.  As mentioned in past posts, visual artists are easily the most-frequently infringed authors on the internet.  It’s so common that many photographers and other creators just starting out have all but abandoned any hope of controlling or being paid for their work.  And that’s exactly how the major internet platforms and the freeloaders want it—a market where creators feel grateful just to be exploited.

Opinions like Judge Boyle’s can be cited in future cases to eventually overturn the opinion in Perfect 10, so this is potentially very good news for visual artists as it would restore the intent of the display right in the digital market.   Add to this, the passage of the copyright small claims provision (H.R. 3945), and users might stop assuming every image they find is just there for the taking.

© 2017, David Newhoff. All rights reserved.

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  • The fun thing about the Pefect 10 “server test” situation is that it hits the copyright owner with a double whammy. Not only may images be conveyed outside the owner’s control, allowing the infringer to reap all the benefits from displaying them (such as may be), but the entity hosting the images (here, presumably, the owner) will also be liable for the costs of delivering the infringing images (because the costs of transmitting image data are charged to whoever is hosting it).

    “That’s a good catch, Catch 22.”

  • Without addressing the public policy question of how such a situation should be handled, I would question the suggestion that ‘Judge Boyle’s opinion seems to better conform to common sense than the “server test.”’

    Using a video camera to broadcast from a movie theater is significantly different from embedding a link to published content in a web page.

    The video camera scenario — involving transmission to the public — is explicitly defined by the Copyright Act as constituting a public performance. (See the transmit clause in the Section 101 definitions.) That being the case, possession of a copy is wholly irrelevant to reaching the conclusion that the act is infringing.

    Embedding a link — really nothing more than publishing the address at which content can be found — entails neither possession, nor transmission. If the link is to an authorized publication of the content, then any transmission and/or copying is emanating from the (lawful) publishing site, and there’s not even any underlying infringement. (And as a technical matter, it absolutely should be possible for a publishing site to limit/avoid unauthorized embedding, by restricting the referring sites to which it will respond with the content.)

    If the link is to an infringing publication of the content, as in the Perfect 10 case, the situation is a bit different. In that case, if the embedding party is intentionally linking to infringing content, then even the mere act of publishing the address might well fall under a secondary theory of liability, such as contributory infringement or inducement. On the other hand, if the linking to infringing content is not intentional, secondary liability is at least much less clear, and quite likely problematic.

    Regardless, the bottom line is that Judge Boyle’s analogy is certainly not compelling, and probably not even apropos, because it’s simply not analogous to the conduct in question.

    As I read the Section 101 definition of “display,” it strikes me as problematic to conclude that it reads on embedding a link, where at root, a site is merely informing the viewer where they can obtain a copy that is actually published, elsewhere.

    • J.S. Greenfield. Thanks for your comment (and your efforts to get through!).

      On the matter of Judge Boyle’s analogy, it’s true that streaming a motion picture in that manner would constitute a public performance, but it also implicates the display right. If one makes just a still image from a motion picture available without license, this would be an infringement of the display right, while there would be no infringement of the public performance right. Motion pictures implicate both, so I believe Judge Boyle’s comparison is instructive. Had she described a live feed of a static image to a website, I think her point would be the same, although the motion picture example is more typical conduct that people understand.

      The reason I call her view common sense is that it seems most reasonable to conclude that causing a work to be displayed reflects the correct spirit of this exclusive right — regardless of how the display is achieved. The requirement, under the “server test” that one must host a copy in order to cause a display to be made strikes me as a technological/semantic end-run around the meaning of 106(5). In my longer post on the subject, I made a distinction between “deep linking” and “in-line linking.” The former, non-infringing links point to locations where content exists, as you describe, while the latter causes an image to appear framed on a site that has not licensed use of the image. To my reading, this conduct easily fits the Sec 101 definition of “any other device or process” for displaying a work.

      I disagree that it matters, in this context, whether the in-line link frames content that is also being infringed by whichever party is hosting the content. One party is infringing both the display and reproduction rights; while the other party is only infringing display. It seems only logical that if the NYT licenses a photo for its page and then I frame that photo, which they’re hosting legally, to cause it to appear on this blog, that I’ve infringed the photographer’s display right. Likewise, my liability should be the same if I in-line link to a different site that is hosting the same photo without a license. As it stands, the display right is all but meaningless in the digital age, which I do not view as progress.

      Thanks again for adding to the discussion.

      • Thanks for your thoughtful reply. I think your focus on “causing a work to be displayed” is really the essence of the issue (though there is also a second issue, of who is actually causing the display). To my view, if you look at the Section 101 definition of “display” what you are really arguing is for “any other device or process” to extend beyond mere technological differences in display technology and to the (fundamental) difference between “displaying” and “causing a work to be displayed.”

        These two concepts are not the same, and I do not believe that the difference is reasonably read into the “any other device or process” language.

        Let’s consider a simple example. Suppose I create a web page that just redirects to an image URL on another website. There’s no framing or content around the image. There’s just as simple redirect — the result is the same as if the user typed the URL directly into the address bar of the browser.

        By your interpretation, I would have “caused a work to be displayed,” and my act would be infringing. That seems to me a clearly absurd result, and one could hardly imagine any court that would hold such infringing. Yet in terms of your definition of “display,” the act is indistinguishable from embedding an image link in a website.

        I would respectfully suggest that what’s actually being objected to is the unauthorized exploitation of a work. The problem is, there is no exclusive right to exploitation of a work, generally, there are only specific enumerated exclusive rights, none of which appear to me to actually be infringed in the case of an embedded link.

        I am actually sympathetic to the economic concern — I think it is a very valid concern. However, I think it is incorrect to try to address that concern by reading a new meaning of “display” into the “any other device or process” language. (Furthermore, I believe this is pretty clearly mixed bag conduct — there will be many instances where such acts are quite reasonable, and in fact, not at all objectionable to rightsholders.) Accordingly, to my view, this is an instance where, if the concern is significant enough, Congress should fashion a solution, not the courts.

        (I also think the second issue I mentioned is a significant concern here, respecting who is actually the volitional actor. For example, if a site embeds a frame with a deep link to an image, but the user must actually click on the link to load the image, is that infringing? Who is “causing a work to be displayed,” when the user actually clicks the link? Now consider that automatically loading of images is actually an option in virtually all browsers. Today, it is an option that is typically turned on by default, and is typically left on, by users. But it is a user option, nonetheless (and some old fogies like myself can remember when it wasn’t the default!). So who is responsible for the fact that the option is turned on? Am I an infringer for embedding an image link when it’s turned on, but not when it’s turned off? Or is the user an infringer for having turned/left it on? Or perhaps the browser vendor is an infringer for offering the option and/or turning it on as a default?)

        For those who are aggrieved by this as a practical matter, there ought to be considerable solace in the fact that the (lawful) publisher in this situation could avoid (or at least sharply limit) such abuse — even if non-infringing — by restricting the pages allowed to embed the image. Many sites already so this, in fact. As a simple example, Youtube has videos that may be embedded, and others that may not be embedded. As a technical matter, it is simple for a webserver to limit the pages that may load content, using the referer header. And as a practical matter, using such would be an effective way to distinguish between the cases where a (lawful) publisher approves of such embedding vs. those where they do not.

        I especially have difficulty seeing what is, at best, a very hard stretch of the Copyright Act’s definition of “display” as justified, when there is actually a simple practical solution that rightsholders/lawful publishers could implement to resolve the issue themselves, without requiring any aid from either the courts or Congress.

      • Thanks. You raise good points. But either I’m not being clear, or semantics are doing us a disservice. For me, the test is whether or not a party makes copyrighted content visible to the public on a platform the party owns or operates. So, as the author of this blog, I’m responsible for any images readers see on this blog’s pages, and I would make no distinction as to how I made those images visible to you while you’re on these pages. I am not responsible for, at least unknowingly, linking to pages where there may be images that some other party is using without license; and if I link to the url that is hosting just an image by itself, I have not implicated the display right. I’ve only pointed to a location where the display exists, as you mentioned. (Of course, this blog being what it is, I tend to be quite careful about what I even point to.) To the extent a setting on a browser could make an image visible to a reader while on IOM without my intending to do so–if I follow the tech you’re describing–then that would certainly be a technological process which would justify shielding me from liability.

        I do agree that voluntary, technical measures are desirable but would argue that the more it is possible for any user to exercise control, this only makes a stronger case for enforcement when needed. Neither the courts nor Congress are involved in the millions of decisions users make all the time not to infringe copyright, so I’m not sure how access to tools that help avoid infringement necessarily obviate the roles played by those entities. As for the lack of clarity in the law, have IP attorney colleagues who do not believe statutory change is needed to better clarify the display right, and Judge Boyle is not the only one to disagree with the 9th Circuit in this regard. But in that older post, I did cite USCO comments re. a WIPO treaty, and these included proposed language for better clarifying the “making available” rights via websites–if Congress were to address the issue.

        Suffice to say, this is a debate in progress for now, and I don’t imagine Congress is going to resume revision of the copyright law in the immediate future given all the other fun they’re having on the Hill these days. So, this particular issue will likely play out in the courts, and if a case truly threatens the precedent set by the “server test,” we can expect Google to release the hounds.

  • I think you’ve been clear — I don’t think we’re talking past each other. I think the issue is that you (and Judge Boyle), fundamentally want to view the issue in terms of first principles, whereby if the effect of something is the same as an act that would infringe, then it should be deemed to infringe. On the other hand, this is not how infringement analysis normally works — the details normally do matter — and that drives where I (and the 9th Circuit) have ended up.

    So, as an analogy — if you paint a mural on the exterior of your house, and I take a picture of it, frame it and hang it on my wall — all without your permission — that is an infringement. On the other hand, if I have a window that happens to face your mural, and I instead simply frame a portion of the window so that the mural is visible and it looks as if I have hung a picture of it on my wall, the effect is the same, but it is most certainly not an infringement. The underlying details matter — that I haven’t actually made a copy, so that there’s no underlying infringing act, matters.

    In this case, upon thinking further, I would pose my prior comments slightly differently.

    To my view, the volitional actor is the publisher of the image. I believe the proper way to view my embedding of an image link is as a request to display the image. It is the publishing website from which the image actually emanates that must actually display the image, and given there’s no legal, technical or practical requirement that it do so, doing such is actually a choice.

    The argument that my act (or any other third party’s act) could even possibly constitute the volitional act of display implicitly depends on an assumption that once I initiate a request, it is a forgone conclusion that the request must be fulfilled. But that’s not correct. The actual display depends upon the publishing website responding to that request by displaying it. And since the publishing website could (fairly easily) decline to do such, it should be very clear that responding with the image is actually the critical volitional choice.

    It seems to me this traditional approach to analysis inevitably leads to the “server test” view — whoever has the server is actually serving up the image (in response to a mere request to do such) and is the volitional actor. In turn, that means only the party with the server can be a direct infringer. Either they are authorized to so display the image, so that there is no direct infringement (and then there can’t be any indirect infringement), or they are not authorized to so display the image, so that they are directly infringing by doing so (and I, as a third party requesting the display, could potentially be indirectly infringing by making the request).

    Or to go back to the case of the mural, if I ask you for a picture of the mural, and you give one to me, which I then frame and hang on my wall, that’s not an infringement either. (And if you have chosen to make a practice of unconditionally giving a picture to anybody who asks, that doesn’t change the situation and render me an infringer.)

    That’s precisely analogous to the embedded link: I request that the publishing website display the image, and it obliges. Your (and Judge Boyle’s) view would absolve the publishing website of all responsibility for that choice to serve up the image. To my view, that makes as much sense as absolving you of all responsibility for giving me a picture of your mural, and declaring me an infringer for requesting the picture, in the first place.

    Now, I don’t actually expect that we’re likely to end up agreeing on what is the correct analysis. But I can’t help but think that we ought to be able to agree that the server test doesn’t actually depart from “common sense.” You want to argue that “common sense” suggests if the result is the same, the infringement status must be the same. However, it’s at least as valid a form of “common sense” to say that if it is the rightsholder that is actually displaying the image, then there is no infringement.

    • Well said. And I like your mural analogy. In fact, it’s helpful in refining what I mean by “common sense.” I don’t mean to say that the 9th Circuit’s reasoning is an act of pure whimsy, so the answer to your last paragraph is, yes, we agree on that. But my concern is that if the “server test” is the final and universal answer, this betrays common sense with regard to common practice and reasonable expectations among authors and users.

      If you take a picture of my mural and hang it on your wall, it might be an infringement, but it is also a use for which I probably won’t sue you and for which you could offer some reasonable defenses if I did. If my mural appears in a scene in a motion picture, the filmmakers could avail themselves of fair use defenses, and I am not very likely to take action over that use either. But, if an advertiser copies my mural to feature it prominently in a campaign — as happened with American Eagle Outfitters and graffiti artist David Anasagasti in 2014 — then it seems to me that common sense kicks in for both the artist and general sympathies to say that this kind of use is a step too far. AEO settled, so we don’t have the benefit of a court opinion, but I’m sure there’s another out there we could find. (Also, I don’t remember if the artist cited a VARA complaint in that case.)

      Going back to the Goldman case cited in my earlier post, we have a photographer whose work was used by several news organizations. Visual artists are well aware that there are many ways for their works to be distributed or featured across the internet without their permission or control. These artists have neither the intention nor the capacity to take action in so many directions. As such, many of these creators have tried to at least make the reasonable distinction that when a use is commercial, they deserve to be compensated–to say nothing of being asked permission. When a reader looks at a news story and the story is supported by a photograph, there’s no question the news organization is deriving commercial value from the image; and the reader perceives the image as part of the story, regardless of where it is being hosted. But, if the “server test” truly provides a blanket exception to the longstanding relationship between photographer and news corporation, then it is a ruling that has done some harm to common sense — even if the reasoning is not entirely without merit.

      If I read you correctly, you’re saying that if the NYT licenses my photograph, they have a responsibility to direct their server to deny permission to another party seeking to in-line link that image to their page. I won’t claim to have the technical expertise to comment on the efficacy of that solution, but I fail to see how it is actually different in physical space. If I give a museum a photograph of my mural, I do not transfer any copyrights with image. And although the museum bears a responsibility to guard against visitors re-photographing my photo of my mural, the museum’s stewardship would not absolve a third party of infringement if they manage to sneak a picture and then make use of it to, say, produce coffee mugs with my image. The museum couldn’t even be liable (except perhaps for negligence) unless I could prove that they facilitated the infringer.

      By the same reasoning, if the NYT licenses my photograph, which is stored somewhere on a server they rent, I fail to see how this absolves the WAPO of infringing the display right simply because they in-line link to the server location rented by the NYT. For all practical purposes, the reader perceives the photo in connection with the WAPO story, so the “server test” seems like a distinction without a difference. Hence my reference to “common sense.”

      More broadly, I am concerned that the logic being applied — and this is the internet saga writ large — is one that tends toward the conclusion that nobody is ever a volitional actor in cyberspace and, therefore, copyright is a dead principle. Certainly, our friends at the EFF would have it be so. All of this returns to the issue of the statute. If indeed the “server test” is a reasonable reading of the law, then the law needs to be amended, as it has been many times, to account for new technological means to make use of copyrighted works.

      Thanks for the lively conversation!

  • Yes, I think a natural consequence of the “server test” should and would be that most images would be licensed for online use with an explicit restriction on the sites (or even specific webpages within a site) in which the licensee may display the image. (If a licensee wanted to do something like make general advertising use of the image, then they would presumably end up paying a premium for the privilege that would adequately compensate the rightsholder for potential leakage and/or might be required to limit the image size to a thumbnail, to minimize the impact of leakage. And quite possibly some reasonable technical approach to ensure that the image is actually being used in conjunction with a licensed advertisement would be developed.)

    This explicit site-restricted licensing would, in turn, create an affirmative obligation for the licensee to restrict the referring pages for which the licensee’s server would serve the image. (Popular website software packages would quickly incorporate simple controls to so limit image/content serving, because the operators of those websites — whether licensees or rightsholders themselves — would seek/demand such, and ultimately it should be very simple to implement.)

    To the degree a licensee failed to limit serving of a licensed image per their license restrictions, that would be a direct infringement, where they would be the direct infringer. But it’s also almost certainly the case that if a third-party requests display of an image from a server that they know lacks permission to serve the image, that would be an indirect infringement, subject to secondary liability. (At a minimum, this should mean that liability would attach once the rightsholder notifies the indirect infringer of the infringement. But if I’m not mistaken, I think secondary liability is entirely judge-made law based on equitable principles, so it seems both plausible and reasonable for courts to expand/adjust the contours of secondary liability to ensure equitable results, if need be. The key is that this would be possible because there would already be a legitimate underlying statutory direct infringement.)

    Couple such with a reasonable copyright small claims court solution, and enforcement would be feasible even for low-value infringements — presumably creating a significant deterrent to infringement.

    So to explicitly respond to your concern, the operator of the image server should always be a volitional actor. And a rightsholder should always be able to either prevent unauthorized use directly themselves (if they operate the server, themselves), or render such an infringement (by restricting the license granted to licensees).

    In a model like that — and (save for the small claims venue, which is a separate issue, of course) I think those are all natural consequences if the “server test” stands — I think you end up with something that’s quite workable in protecting content value. In other words, I don’t look at the “server test” and see something that obviously, or even very likely, eviscerates the display right.

    But if it did turn out to eviscerate, or even just substantially harm, the display right and content value, I would consider it quite reasonable to seek to change the law to address such. At this point, I do still believe that should be a statutory change. I’m not convinced that it’s within the proper scope of judicial interpretation for courts to find (I might even say manufacture) an infringement within the confines of the existing statute, simply because they feel the result is inequitable. I’m closer to feeling convinced of the opposite.

    Thanks to you also, this has been a good discussion!

    • Surely the issue is that someone has made the decision to use an img tag on their webpage rather than a target hrtef tag. There is the volition. It is a choice to cause the the image to be displayed.and it makes no difference as to where the source of the image resides. If the image is on a site I control then potentially I could display the image not via a direct img tag but through some server side PHP script that determines the location of the request. Is it coming from my site or some other site and serve up an image of a “Baboon’s ass” if I detect in-lining.

      This is not an option if I have licensed the image to some other site.

      • Surely the issue is that someone has made the decision to use an img tag on their webpage rather than a target hrtef tag. There is the volition. It is a choice to cause the the image to be displayed.and it makes no difference as to where the source of the image resides.

        Let’s be clear what you’re arguing here:

        1) Exploiting the image in a website inherently violates copyright, not matter how such exploitation is implemented.

        This is simply false. There is no exclusive right to exploit. How the image is actually exploited matters.

        2) The decision to use the image in way that doesn’t infringe is, itself, an act of infringement!

        Let’s go back to my mural example. By your logic, when I ask David for a photo of his mural, that’s an act of infringement. Doesn’t matter that he gave me the image, and doesn’t matter that I never do anything that actually falls within the rights exclusively reserved to rightsholders. Because I could have hung a photo of the mural on my wall in a way that infringed his rights, the decision to avoid doing anything that would infringe, is itself, and act of infringement!

        This is simply not how the law works. The details matter. There actually has to be an underlying act that is both unauthorized and exclusively reserved to rightsholders for there to be infringement. There are often both infringing ways to do things, and non-infringing ways to achieve the same result.

        This cuts both ways. I may be able to achieve the same result as infringing without infringing, by changing the way I do things. At the same time, if there’s something I’m doing that doesn’t infringe, I can’t just change the way I do things, and automatically be protected from infringement because the result is the same as when I wasn’t infringing.

        Let’s look at a real-world example. Precedent now clearly holds that individuals can upload copyrighted content that they lawfully possess, such as music, to the cloud, for their own private use. And I can legally offer a cloud storage locker service to store and stream users’ lawfully-acquired music, without authorization from rightsholders. I could instead store just a single copy of each song any user uploaded, and stream the song to all users possessing a lawful copy of that song, from that single copy. The result is identical. But the latter approach requires authorization from each song’s rightholders, or it infringes. The details matter.

        If the image is on a site I control then potentially I could display the image not via a direct img tag but through some server side PHP script that determines the location of the request. Is it coming from my site or some other site and serve up an image of a “Baboon’s ass” if I detect in-lining.

        You don’t need a PHP script. Every browser of any commercial significance already supplies the standard “Referer:” header with all requests, identifying the page that (in this case) incorporated the IMG tag. The http server could easily limit its response with the requested image to cases where the referer field reflects a whitelisted page or site. I suspect, however, that in cases of unauthorized embedding, it would be more common for the server to respond with something like a 401 Not Authorized error, than a baboon’s ass. 😉

        This is not an option if I have licensed the image to some other site.

        As I noted previously, you would have the option to explicitly limit the scope of the license granted to use within some specific pages or sites, thereby creating an affirmative obligation for the licensee to limit what pages/sites may embed the image using a copy obtained from their server (which they would presumsbly implement by the same, or a very similar mechanism).

    • My apologies. I’m spread very thin most days and cannot always keep up with these discussions, especially when they’re interesting and worth consideration! And I see the discussion as continued.

      Without getting into every aspect of this, while your solution is intriguing, I worry that there are many instances where it cannot be applied. If I understand you correctly, you would make limiting access to an image part of the license agreement, and place that burden on the licensee. But if I create an advertorial for my client, I license an image via my stock image account and, by conditions of my contract with the client, I transfer that license to him. Then, I send the finished artwork to the publisher, Magazine.com, which hosts the work on its platform. The publisher in this case is not the licensee of any of the advertising images on its pages, and the licensees of those images cannot be responsible for the conduct of the publisher (and neither can the publisher be responsible if an advertiser is using the image without a license.) In this scenario, it seems to me that in order to deploy your solution, the publisher has to be mandated by policy to limit access to the images on its site because it clearly has not entered into a license agreement with the authors of those images. As a policy proposal, Google et al would scream bloody murder. It still seems far simpler to place the burden on the individual or entity that chooses to make the image appear to the viewer as though it is part of the individual or entity’s page(s).


      • Exactly. This whole proposal is simply to allow the server test loop-hole of the P10 case. But the P10 loop-hole was very specific and limited in its application. Essentially Google was being sued for inlining images from websites that were infringing P10s copyrights.

        The question was “who is the direct infringer” and the court held that it was the infringing website. That Google framed that website did not make them direct a infringer of P10s images they may have been an infringer of the infringing websites but that wasn’t the question being asked.

        In this case we have a website that directly chose to display another sites page/image. IE they are the direct actor that is causing the display and don’t need to look at where the data resides.

  • 1. It is not about some nebulous exploitation it is about display rights. The right is violated by inlining as a technical measure “img tag” is use to cause the image to be transmitted to a web browser. A server of the image is simply responding to the request and whilst it could make a stab at determining authorization it cannot accurately determine authorized/not-authorized. Example I license an image as CC-NC to A who stores it on some server and displays it on their web page using an img tag. Whilst the server might determine that requests are coming from A’s site, it cannot determine that a request from site B isn’t also authorized as site B is non-commercial. If A puts technical measures in place to stop inlining from B then they are breaking the requirements of the CC license conditions wrt “No downstream restrictions”.

    2. Your mural example doesn’t work. In the framing you suggest you have neither made a copy nor have you violated the display right as the framing is not a public display. The argument grossly misuses the word ‘frame’ to apply it to a different context. What the website inlining does is equivalent to placing a camera in front of the mural and stream the pixels to public projectors. Of course a webpage does not need to be public and it is entirely acceptable to inline an image on a web page that you only view privately. It is the public nature of the display that is the issue.

    3. Not every one who has a website also has sufficient access to the webserver to limit 3rd party inlining. For example I don’t believe one can’t do that in blogger, or wordpress. So I may license an image as CC-NC and it could be used by some non-commercial blogger A. Typically they won’t have access to server side scripting, nor the tech knowledge to use it. Which doesn’t mean that commercial site X then has a right to inline the image from A’s wordpress page, so that it appears on X’s commercial website. Your suggestion that some additional licensing requirement could be used invalidates all the Creative Commons licenses*, as they do not allow for additional conditions.

    4. Returning an image of a Baboon’s ass, or a porn image rather than a 401 is most effective. Sites may ignore a missing image, but are not likely to want their site showing porn. Treat it as a lesson in the dangers of inlining. Sites that scrapped images from flickr based on tags soon found out that wasn’t a good idea when images stating how crap site X’s products/services were replaced the images on their pages.

    * Though the CC license may in effect catch the inliner as the inliner is unlikely to have followed all the licensing steps required, such as attribution, and linkage to the appropriate CC license.

  • David, no apologies necessary regarding timing.

    I don’t quite follow the example you provide. I think you’re saying that you (A) are licensing an image from a stock service (B) to create an advertisement for your client (C) who places the advertisement in a magazine (D). You transfer the license to your client, so effectively we can simplify this to C licenses an image from B for publication in a magazine on D’s server.

    I think this surely can be addressed by contractual arrangements (not mere policy) between the parties. Or if that’s what you mean my mandated policy, then yes. But this is fundamentally no different than a license, which after all, is just a contract. What I would precisely expect would be that license restrictions (contractual requirements) from rightsholders will cascade through the value-/supply-chain as contractual requirements between the various parties. In the case of your client and the magazine, I’d expect your client to contractually demand the required behavior from the magazine, as a condition of purchasing the advertisement.

    Btw, it may not be convenient to make the business process changes to achieve such, but convenience isn’t the point here. (Or more specifically, when it comes to interpreting existing law, convenience is not the point. Convenience could certainly be a valid point if addressing a public policy question that encompasses potentially revising the law.)

    So let me clear regarding my view:

    1) I believe the volitional actor in displaying an image on the web is the party that controls the server. It has the power to display or not display the image. Anybody else has only the power to request such display. i.e., I believe that the server test is fundamentally correct.

    (This is first and foremost, and independent of everything else.)

    2) I also believe that it’s feasible (and probably relatively easily so) to adjust systems to limit when a server will display an image, to those cases (or mostly to those cases) where such is intended to be authorized. This makes me think that if the server test did stand, it would not spell doom — i.e., that it wouldn’t be essential to change the law, in order to avoid substantial harm.

    (I’ll allow, it’s possible I could be wrong in this expectation, but that would simply say to me that modifying the law to address the concern would actually be necessary. It wouldn’t change my perception of what the existing law means.)

    I’d also note that I don’t care what Google would like or not like. I don’t think that should be a factor in interpreting the law. There are parts of the Copyright Act where Congress has explicitly authorized courts to act equitably — for example, in evaluating fair use. There are parts of copyright law where the courts have been implicitly authorized to act equitably — for example, secondary liability, where the courts have been adjudicating such equitably for more than a century, and despite revising the law multiple times, Congress has declined to intervene in such. This is not one of those parts, and so it is not appropriate for courts to reach a determination based on what any party would like, or equitable principles, more generally.

    I will confess that I’m wondering if Google (and potentially other search services) are the only/primary practical concern for this issue? (“Only” meant in the sense of just trying to understand the scope of the practical threat perceived — not intended to be dismissive of the google as a potentially powerful concern.) Are there others who you feel systematically “abuse” inline links, to the point of representing a substantial economic threat?

    John, my basic response to you is largely the same as the above.

    First, I’ll note that it is merely your assertion that the display right is violated by insertion of an IMG tag. That is not a statement of actual law, nor do I believe it reasonably ever could be (under the existing statute) — for to make it such would create a fundamental conflict. If I type the URL of an image on your website into the address bar of my browser, that is very clearly a request for your server to display the image. And if your server in fact responds with the image, then you are clearly the volitional actor in displaying that image. If I type that same URL into an IMG tag in an html document, and then load that document into my browser, the exact same thing occurs – yet you would now declare me to be the volitional actor in displaying the image. I believe that is irreconcilliable under the law as it stands.

    Next, I’d note that my mural analogy was intended to be an offline analogy — i.e., an analogy to a case where there’s no debate as to what infringes and what does not. My mention of framing there was not, in any way, intended to reference or be likened to frames in HTML. It was as simple as frames are normally used when hanging pictures, and something was needed to demarcate the “picture equivalent” in the viewed-through-the-window case.

    Finally, I think it’s absolutely correct that many website operators, including those using tools such as WordPress, don’t presently have ready-made tools accessible to them to restrict embedding. (It is unquestionably the case, however, that if website operators demanded such, those tools would be very quickly forthcoming — and especially so on open source platforms such as WordPress.) It also may be that CC licenses are incompatible with contractual restricting embedding. (And certainly, neither will the vast majority of existing licenses and contractual arrangements.) Neither of these are relevant to correctly interpreting the law.

    As said above, that it is inconvenient to them is irrelevant to properly interpreting the existing law. Whether it’s easy or hard for them to implement embedding restriction today, it is their volition to deliver the image when requested. In fact, even if it were impossible for restrict embedding, there would still be a strong argument that the server operator is the volitional actor, because of the decision to, nonetheless, place the image on the server.

    The job of the courts is to interpret the law as written, and there’s nothing in the law that grants courts the discretion to declare that an action by a rightsholder or licensee should instead be treated as if it were actually an infringing action of a third party, simply because it is hard (or even impossible) for the rightsholder or licensee to do something that they would like to do, without also doing something they’d prefer not to do.

    Creating new policies to address such concerns, and trade-off the benefits and responsibilities among the various parties, is very clearly the proper domain of Congress, not the courts.

    Likewise, if CC or any other existing licenses or contracts are rendered problematic by proper interpretation of the law, so be it. Those licenses and contracts can be changed to be more useful, or not. Either CC will be modified to accommodate the practical needs of rightsholders and licensees, or people will stop using it, and somebody will create new, more useful standard licenses. The notion that a court should interpret the law so as to preserve the utility of CC (or any other licensing paradigm) is, frankly, bizarre. It implies that the public may override laws (without going back through legislative processes) by merely adopting private contracts/paradigms that aren’t convenient to use under the existing law. I don’t know how to characterize that as anything on than bizarre.

    • Are there others who you feel systematically “abuse” inline links, to the point of representing a substantial economic threat?

      The majority of websites abuse inline links and almost all UGC sites do so.

  • If I type that same URL into an IMG tag in an html document, and then load that document into my browser, the exact same thing occurs – yet you would now declare me to be the volitional actor in displaying the image.

    This is not a question of mere display of the image, but the public display. Someone placing the URL of an image into a browser’s address bar displays the image, but they don’t infringe on the display right. Someone putting the URL within an img tag on some HTML page which is then made public does infringe the display right. It is the difference between singing a song among friends in ones parlour, and singing the song on stage at Carnegie Hall to a full house.

    correct that many website operators, including those using tools such as WordPress, don’t presently have ready-made tools accessible to them to restrict embedding.

    Why introduce a requirement that some technical measure needs to be legally applied to prevent infringement of the display right? We don’t say that the film loses its protection against copying sans DRM. So why should an image lose its display right protections sans some technological protection?

    The notion that a court should interpret the law so as to preserve the utility of CC (or any other licensing paradigm) is, frankly, bizarre.

    The notion that courts would remove a right granted by Congress simply because the technology to legally display an image is the same technology that is used to illegally display it? It would be like saying that theft doesn’t occur if a premises isn’t effectively secured. Its not the img tag that violates the display right it is the context by which it is deployed.

    • This is not a question of mere display of the image, but the public display. Someone placing the URL of an image into a browser’s address bar displays the image, but they don’t infringe on the display right. Someone putting the URL within an img tag on some HTML page which is then made public does infringe the display right.

      The volitional actor does not change based on whether the display is public or private. No doubt the example you provide is a public display, but it is still the server operator who’s doing the displaying.

      Why introduce a requirement that some technical measure needs to be legally applied to prevent infringement of the display right? We don’t say that the film loses its protection against copying sans DRM. So why should an image lose its display right protections sans some technological protection?

      Nobody’s introducing a new requirement. Your film/DRM analogy is inapposite.

      The problem here is that the server operator is doing the displaying, and sometimes that’s in instances where the server operator would prefer not to do so, but hasn’t (bothered to) implement a mechanism to prevent his server from doing so.

      What you are asking is for the courts to ignore the law as written, give their blessing to the server operator’s failure to implement a mechanism to display the image only when intended, and deem a third party who merely requested that you display the image to be an infringer.

      That’s simply not within the courts’ proper power to do.

      An apposite film analogy would be if Netflix didn’t bother to implement a login, instead making all its streaming assets available just by directly entering a URL, and then expecting the courts to deem any non-subscriber who uses a Netflix URL a copyright infringer.

      And this is actually a useful example, I think, because it should be clear to everyone that no matter where that URL is placed, or by whom — whether typed directly into an address bar, or embedded in some other website — it is Netflix and only Netflix that is performing the asset. Merely requesting that Netflix stream the asset simply is not performing.

      Likewise, you can’t hire someone to hand out copies of a photograph to everyone who asks, and then expect the courts to deem anybody who didn’t pay you before asking an infringer. You are the person who made and distributed the copies!

      The notion that courts would remove a right granted by Congress simply because the technology to legally display an image is the same technology that is used to illegally display it? It would be like saying that theft doesn’t occur if a premises isn’t effectively secured. Its not the img tag that violates the display right it is the context by which it is deployed.

      The courts aren’t removing any right by (correctly) interpreting the law to reach the server test.

      Look, I and everybody else understand that you (and many others) feel this is an infringement of your moral rights. In many instances, I might well agree.

      But that is different from actually infringing copyright.

      If Congress in 1976 had foreseen technological change raising these kinds of issues, they might well have agreed that it was an infringement of moral rights, and written the law differently to deem such an infringement. (Then again, they might not have.)

      We certainly know that Congress attempted to future-proof the law to some degree by inserting “by any device or process” type language in a few places. But something simple like that is never going to address every possible change that may come.

      In this case, what we fundamentally have is a paradigm change whereby the party that you feel is infringing your moral rights isn’t actually doing any of the things reserved to rightsholders under the Copyright Act. That paradigm change was clearly not anticipated by Congress, and cannot be remedied by the simple “any device or process” language they inserted.

      That’s why it’s incumbent upon server operators to control their own serving of images. It’s no different than it being incumbent upon Netflix to make sure it’s a paid subscriber before they stream a movie, or somebody selling copies of a photograph to implement some kind of proof of payment mechanism so that their distributor only hands the copies to people who have actually paid.

      The courts aren’t removing any rights when they refuse to manufacture new law of whole cloth, in order to simplify your business.

      If the burden is really too great, then it is Congress that must be the source of relief.

      The majority of websites abuse inline links

      That sounds rather incredible. Evidence to support this claim?

      and almost all UGC sites do so.

      Can you provide some more specific examples of what you mean?

      • The volitional actor does not change based on whether the display is public or private. No doubt the example you provide is a public display, but it is still the server operator who’s doing the displaying.

        That is not in dispute. The volitional actor is the person that causes the issuance of the request for the URI that specifies the image. The server is incapable of determining whether the URI request is an infringement. of the public display right, I may enter


        directly into my browser, or i may code img src=”http://example.com/images/some.jpg” in an html document that resides on my computer, or place the html page into a private directory on my web host, and I can also make the page public. It is only the later that violates the public display right, The server receiving the request does not have the ability to distinguish between the three, it may not even have a referrer.

        Nobody’s introducing a new requirement. Your film/DRM analogy is inapposite.

        You are introducing the new element. You are saying that in order to protect the display right the author needs to apply some magic technological protection.

        The courts aren’t removing any right by (correctly) interpreting the law to reach the server test.

        You have misinterpreted what the court said. They said that in determining who was involved in the display right violation they should look at where the image resided. The images in question resided on a website that had illegally copied them. Google had no a priori knowledge that the images were illegal copies, and as such could not be held culpable of direct infringement. Aside: when Google Images Search inline link my images from my site that is a direct infringement, which they get a fair-use pass for being a search engine.

        Smokey Joe’s Cafe on the other hand ought to get a license before inlining images from some website they happen upon.

        That’s why it’s incumbent upon server operators to control their own serving of images.

        Even if it were technically possible, which it isn’t (see above), for the vast majority of images posted on the internet the photographer does not have control of the server. There are over a billion images of flickr, but those uploading images there have no control over the server, there are even more on FB but FB users can’t control the FB servers. And as we’ve already established we can’t control the wordpress or blogger servers either.

        Can you provide some more specific examples of what you mean?

        Plonk a link to some ad hoc image into a post on facebook and watch it become inlined. That gives rise to millions of display right violations each hour. If it wasn’t for display right violations FB for one would cease to exist.

      • John, I’m afraid at this point the discussion is not productive. You merely continue to insist that a person issuing a request to your server is “displaying” it, and you are not. You’re not making any argument to justify such as a matter of law, or to counter points I make. You’re just repeating the same assertion over and over.

        Furthermore, your characterizations of my comments are not at all accurate.

        I appreciate your elucidation on what you perceive as infringement via UGC sites. However, my kneejerk reaction is to think that there is a basic problem with your view on such. If you upload images to Flickr or Facebook or such, you are agreeing to their terms of service. If Flickr is offering users a tool to post inline links to images on their website, it’s really difficult to imagine that you haven’t granted them the right to do such, when you post your images there. Likewise, if you want to post to Facebook, you have to be willing to live within the confines of what Facebook will and won’t allow you to do. If you want to post publicly and also restrict inlining, Facebook is probably just not a place you can do that. You don’t have an inherent right to do such on Facebook, and demand that the courts re-interpret copyright to facilitate your convenience at doing such.

        I will say this, however, as a follow-up to my prior comments. There might actually be a solution rightsholders would like, even without making the (straightforward) modifications to servers to limit where they serve those images.

        If rightsholders licensed images only for specific pages/websites, when licensees serve those images embedded in other pages/sites, they would be (directly) infringing. That means when a third-party embeds those images, there actually is an underlying infringement, and they become potentially secondarily liable. What’s presumably needed to make them liable is simply knowledge that the server they are referencing is not licensed to display it embedded on their own sites. This could probably be accomplished, as a matter of law, via a simple disclaimer (perhaps even a hidden disclaimer, perhaps posted in something like the alt description for the image). And if the practice of restricting licenses in this way became commonplace, then courts might well infer constructive knowledge even without a specific disclaimer.

        This approach would, of course, leave licensees open to claims of direct infringement, but I don’t think there’s any requirement that one actually sue an alleged direct infringer in order to sue an indirect infringer. And perhaps courts would allow rightsholders and licensees to even be so cute as to provide a covenant not to sue, along with the limited license. (i.e., so that there would be an underlying infringement, but the licensee would be protected from suit.)

        All of this would probably be stronger if licensees actually made a good faith effort to restrict how they serve images, and the covenant not to sue were conditioned on such good faith efforts. But perhaps merely conditioning the covenant on notification of the rights restriction — or not conditioning it at all — would be sufficient. (I don’t know the precedent around such well enough — i.e., if a covenant in such case could be deemed a constructive license, thereby eliminating the underlying infringement.)

        In any case, at this point, absent some (surprising) substantive advancement of the discussion, I don’t expect I will comment any further.

  • Can you provide some more specific examples of what you mean?

    More on this.

    Flickr allows people to click on an image in flickr and get the HTML/BBCODE for posting an img link on some other website. It also has buttons to post the image to facebook, tumblr, twitter, and pinterest. It also provides the photographer options to disable those buttons.

    There are browser addons that gives a user a RMB menu item to add any image to a wordpress, blogger, or other site post. Some forum sites have addons that build this into their visual editors. Almost all usages of these addons will result in a display right violation. The user that does it is most likely unaware of the issue: It must be OK because the forum posting code lets me do it.

    Then there are sites that allow you to enter keywords and get back a list of images from flickr that are tagged with the keywords. The images are formated on the screen and the site offers them as free wallpaper, pd images, or free to use. These sites crop up regularly in the flickr help forums. Mostly these sites are using an API from flickr and do not check the licenses on the images. Flickr will invariably block those types of sites.

    Then there are the sites that display a grid of images pulled from flickr based on some text within the content, so a pest control company may be pulling images from flickr that are tagged with rodent. A travel website’s page on Paris pulls images from flickr tagged with Paris. Google once overlayed images that were geotagged on flickr onto its maps. Google Streetview allows anyone to link still images to a location, the linker may not be the photographer. I’ve had a number of images used that way, and it is impossible to get Google to take them down. The only way I found of doing that was to break the link. This of course has cascading issues as it breaks for anyone that had used the link legally.

    I have metatags on my website that instructs Google not to index any of my images. This works up to a point, because if an image is linked to by a University and Google have followed the image link from there then the metatags are ignored.

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