A Tale of Two Links: The Goldman & Playboy Opinions (so far)

“…it was the age of wisdom…” Goldman v. Breitbart et al

An opinion handed down last week by a New York district court marks a substantial victory for rights holders, especially photographers and other visual artists. In November, I wrote about this case and opined that a too-broad application of what’s known as the “server test” effectively strips a class of creators of their exclusive right to publicly display works protected by §106(5) of the Copyright Act.

To recap, Breitbart and nine other news organizations were sued by photographer Justin Goldman for infringement of his copyrighted photograph of athlete Tom Brady. The defendants caused the photograph to be visible on their pages, framed in conjunction with their news articles, by means of embedding code rather than copying the image and placing it on their own servers. Because the use of embed code to “point to the location” of a work on a third-party’s server does not involve the act of copying, defendants argued that they are shielded by the “server test” as applied in Perfect 10 by the Ninth Circuit in 2007.

In essence, the argument stemming from Perfect 10 is that an infringement of the public display right cannot exist when a defendant merely “points” to an image file hosted by a third party. Unsurprisingly, the defendants, with the help of the EFF, have claimed that any other understanding of the “server test” would—follow the bouncing ball—break the internet. (Eventually people are going to notice that the internet keeps not breaking, right?)

Judge Katherine B. Forrest unequivocally disagreed with defendants, citing legislative history, case law, and common sense, articulating several reasons why the display right is agnostic with regard to the means by which the display is made.  From the opinion:

“Having carefully considered the embedding issue, this Court concludes… that when defendants caused the embedded Tweets to appear on their websites, their actions violated plaintiff’s exclusive display right; the fact that the image was hosted on a server owned and operated by an unrelated third party (Twitter) does not shield them from this result.”

Citing the Supreme Court in Aereo (held to violate the companion right of public performance), Forrest notes, “…the principles that undergird the Aereo decision—chief among them that mere technical distinctions invisible to the user should not be the lynchpin on which copyright lies—apply with equal vigor here.” [Emphasis added] Those words go right to the heart of the semantic shell game web platforms play in an effort to get away with unlicensed exploitation of creative works. As stated in my November post on this story, the mere technicality that the user of a work is embedding a link should not be the standard on which this matter turns. In plain words, if a reader visits your web page and perceives pictures, video, or text that you’ve arranged on that page, you’ve created a display of those works. How you did it does not matter.

Judge Forrest agrees, and her opinion is essential if a right like public display is going to mean anything in the digital age because it’s obvious that an image file can sit in one location on one server to which millions of users can theoretically “point” and cause that image to be displayed millions of times. Embedding is within both the statutory and common sense understanding of what it means to display a work.

If the defendants appeal in this case, it will go to the Second Circuit, which has apparently not weighed in on the “server test” to date. Rejecting defendant’s claim that the matter is “settled law,” Judge Forrest looks to other courts and observes that, “Even a quick survey reveals that the case law in this area is somewhat scattered.” She further notes as significant the distinction between Google’s image search tool—at issue in Perfect 10—and the displays made by the news agencies in this case. She states:

“In this Court’s view, these distinctions are critical. In Perfect 10, Google’s search engine provided a service whereby the user navigated from webpage to webpage, with Google’s assistance. This is manifestly not the same as opening up a favorite blog or website to find a full color image awaiting the user, whether he or she asked for it, looked for it, clicked on it, or not.”

“…it was the age of foolishness…” Playboy v. Happy Mutants (Boing Boing)

I also recently posted about Playboy’s suit against Boing Boing, alleging contributory liability for copyright infringement of a large collection of its photographs. Having read the Playboy complaint, I can’t say I was terribly surprised that the California District Court granted the defendant’s motion to dismiss with leave for the plaintiff to amend. The complaint was not very clear, and it opened the door for the EFF to file an amicus brief that explored a litany of speculation as to what Playboy might have been alleging and then enter correspondingly speculative defenses into the record. Thus, I mocked EFF for citing fair use and calling Boing Boing “journalism.”

Although, in response to the motion, the EFF took a small victory lap for “free speech,” this case has nothing to do with free speech and, to my mind, should be much simpler than it appears. It shares a kindred sleight of hand with the Goldman case because “digital rights” groups and web platforms would very much like the act of “linking” to be universally shielded from liability. But the legal issues in these two cases are quite different. In Goldman, the “linking” created a seamless display of a work on the defendant’s web page. In Playboy, the allegation is that Boing Boing both promoted and facilitated infringement that was actually committed by another, unknown, party. In my post on the matter, I accused Boing Boing of engaging in this conduct solely to drive traffic to its site while adding nothing to the user’s experience in the process.

A simple way to understand this case is to substitute Playboy’s images for child pornography. I know it’s an overused example, but that’s because there is no confusion that child porn is unlawful in every sense of the word. If Boing Boing were to write a post that said something like, “Child pornography is a heinous crime that we would never condone, but reviewing these images provides insight into the minds of pedophiles,” and then they linked to said images, guess what would happen. That’s right. They could be held liable for facilitating and promoting access to unlawful material; and I doubt that any court, or many citizens, would be the least bit confused about this because linking to the material is not integral to reporting about it. This is a judgment call that professional journalists make all the time.

Returning to the Playboy complaint, it’s important to keep in mind that infringing content is, by definition, unlawful content—even if it’s not as dramatically unacceptable as child pornography. Thus, the unlicensed cache of Playboy photographs was unlawful content; and Boing Boing’s act of promoting and facilitating access to that content is arguably contributory according to the standards for such conduct as described in the criminal code. We’ll see if the attorneys for Playboy make this any clearer in a revised complaint, and I hope they do because the principle is more important than the infringement of their images.

Beginning in late 2016, a new discussion began about what kind of internet marketplace we want to have—one that truly serves the public good, or one that favors lazy exploitation and monetization of everything that moves. In fact, it’s interesting that these two “linking” tales happen to contrast some legitimate news sites (e.g. Time & Gannett) with a clickbait platform like Boing Boing because for years, content creators have watched the exploitative behaviors of the latter inform the sensibilities of the former. In other words, the web-only industry has taught traditional industry how to not license works like photographs. Hence, these two stories sit squarely in the column of the internet we don’t want in my view; and in the coming months or years, the EFFs of the world may discover that it’s actually possible to defend the goals of truly innovative and useful enterprises without defending every slapdash huckster or corporate exploiter with a URL.

David Newhoff
David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

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