David Newhoff, Author at The Illusion of More

Has the Server Rule Reached its End of Service Date?

“Solicitude for certain current Internet practices fails to acknowledge the troubling effect the server rule has had on creators and copyright owners, particularly photographers, whose works become subject to mass unauthorized and uncompensated exploitation through third-party embedding. By converting the display right into an atrophied appendage of the reproduction right, the server rule ignores Congress’s endeavor to ensure that the full “bundle” of exclusive rights will address evolving modes of exploitation of works.”

Can I get an Amen?

A new paper published in the Columbia Law Journal by Jane C. Ginsburg and Luke Ali Budiarjo anticipates what the internet could look like without the so-called server rule and, in conclusion, asserts that to most users, it would look very much the same but that copyright owners could see a significant improvement in their ability protect their “making available” rights, primarily the right of “public display.”

Simply stated, the server rule holds that when a user embeds code that causes a work to appear on a web page, this conduct never infringes the public display right solely because the user is “pointing” to the file on a server he does not control. The “rule” stems from the 9th Circuit decision in Perfect 10 v. Amazon in 2007 and has generally served as a blanket immunity for this type of linking, most commonly when displaying photographs and other visual works.

The problem for creators is fairly obvious. When any party causes a work to be publicly displayed without permission, the method by which that display is made is both invisible to viewers of the work and irrelevant with regard to the copyright statute. If you see a photograph on this blog or in a news article, you perceive it as a seamless display in conjunction with the text, and it makes no difference to the owner of that photograph whether I’ve uploaded it to the bit of server space I control or have embedded code to point to the photo on some other server I don’t control.

This meaningless distinction from the photographer’s point of view is what the quote above means by saying the server rule has been “converting the display right into an atrophied appendage of the reproduction right.” Both rights are protected by statute, so the distinction that the infringing use of a work is permitted because “no copy has been made” does not suit any reading of the law.

Ginsburg and Budiarjo reject what they call the “fulminating” of the Electronic Frontier Foundation, which has asserted via amicus brief that any weakening of the “server rule” would (you know the drill) break the internet. And it is important to note that we’re not talking about all forms of linking in this context, though this would not necessarily stop EFF et al from launching a #savelinking campaign if the courts continue to amend their positions on the server rule as they have done lately.

On May 30, photographer Justin Goldman reached a settlement with Time Inc. in the litigation stemming from the unlicensed display of his photograph made by several news media organizations. (See posts here and here.) This settlement follows a decision in a New York District Court in February of 2018 that, according to Ginsburg and Budiarjo, is exemplary of a trend in which the courts have begun to take a more nuanced look at the 2007 Perfect 10 decision and have recognized the effect of the server rule on the display right and the copyright owners of visual works. Judge Katherine B. Forrest concluded in Goldman …

“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.”

Thus, Ginsburg and Budiarjo explore in their paper what the effects might be if courts were to continue in this vein and un-write the twelve-year-old server rule. Their main conclusion is that largely un-litigated aspects of the DMCA already lay the foundation for sufficient liability shields for both individuals and platforms but that the “server rule” has largely prevented courts from considering “whether embedding content via a hyperlink qualifies for the §512(d) safe harbor defense because such an act was, as a matter of law, not copyright infringement.”

If this sounds like a distinction without a difference, the important shift (to the extent that I can fairly summarize a sixty-page paper) is that rather than blanket immunity based entirely on the method of effecting a display, the liability shield would be properly placed, as DMCA anticipated, on a user’s knowledge that his/her/its use is infringing. For instance, the paper contends that a user who embeds code that unintentionally points to an infringing host of a work would be shielded from liability by the provisions of the DMCA and, therefore, does not need the server rule.

Meanwhile, this shift in jurisprudence would enable owners of works like photographs to enforce their display rights and, therefore, control and license the means by which their works may be used, whether they are copied or “pointed to” by embed code. Ginsburg and Budiarjo lay out various reasons why this change would not lead to a “flood of strict liability claims against everyday Internet users,” but they instead argue that reversal of the server rule would produce enough change in the practices of major platforms that one result would be a general shift in awareness that not every work within reach of a cursor is free to exploit online.

“…the reversal of the server rule may chip away at the widespread belief that the Internet is a realm in which the intellectual property rules of the offline world do not apply….Internet users may perceive, over time, that the online services they use every day and perhaps take for granted will change—whether as a result of lawsuits from copyright owners or negotiated agreements with the agencies or collectives who represent them—in ways that signal that dominant technology companies are not exempt from the laws that govern the dissemination of works of authorship simply because they do business in cyberspace.”

Can I get another Amen?

There are a lot of moving parts in this paper for the hard-core copyright wonks; but perhaps the most essential general takeaway for everyone is that it very reasonably observes that the “rules” of the still-evolving internet must also be still-evolving. And those who seem to feel that decisions made ten or twenty years ago are sacrosanct deserve more than a little skepticism.

The Pelosi “drunk” video is not only disturbing, it’s probably illegal.

There should be little doubt that the video clip doctored to make Speaker Pelosi look drunk should be seen as a sign of new hazards to come in the digitally-enhanced war on reality. The video is not even very sophisticated compared to what is actually possible right now with technology like “deepfakes,” and we can expect to see far more clever uses of fabricated video that are subtle enough to seem plausible—perhaps even fool experts before long.

Moreover, it should be recognized that most of us have bigger public profiles than we would have had twenty years ago. Replace the Speaker with a university scholar or artist or corporate executive that some disgruntled party wants to harm, and the relative ease of reputation destruction should be a chilling thought for anyone with a social media account and photos or videos of themselves online. (Show of hands?)

Regardless of where one nets out on Facebook’s handling of the Pelosi “drunk” clip—leaving it online with caveats that it is a fake—it should probably be viewed as an outlier in terms of guidance for content removal specifically because it involves a high-profile elected official and is, therefore, news itself that perhaps should be viewed in that context. But the video also implicates three violations of law that Facebook could choose to find instructive to its evolving moderation policy.

For consideration, recognize that the Pelosi “drunk” video is intrinsically copyright infringement, libel, and an infringement of the subject’s first amendment rights. Any one of these should recommend removal as the default choice for the platform, but checking all three boxes should be a no-brainer. It should also be noted that doctored video used to malign individuals is a byproduct of a culture skewed by the misconception that every video, photo, etc. online is available for common use; and in this regard, the copyright analysis helps identify what the Pelosi video truly is in a legal sense.

Why the Pelosi “Drunk” Video is Not Fair Use

Were the maker of this video to be sued by the copyright owner of the source material, his counsel would no doubt try to defend the fake as “transformative” commentary or parody (and the folks at EFF might even hold their noses and write a supporting brief), but any court that would allow this defense to be considered would have to blind itself to the fact that the sole purpose of the use was to fabricate newsworthy evidence of an event that never happened.

While free speech protects the right to mislead through the production of one’s own video or other media, I would argue that fair use does not support the right to mislead by using a copyrighted work to create a fake “factual” work. The fair use doctrine, as codified in the Copyright Act of 1976, seeks to exempt unlicensed uses of protected works for purposes such as, but not limited to, commentary, education, news reporting, and parody.

The fair use principle is court-made doctrine dating back to 1841 in the U.S., and we can bet the farm that no jurist anywhere has ever opined that a socially beneficial aim of this provision is the production of “false testimony.” (Judges are not fans of false testimony.) And that is the only thing communicated by the doctored Pelosi video: a false testimony that the Speaker was inebriated in the scene as depicted. There is no discernible commentary or parody in the use.

In his seminal work on the much-debated “tranformativeness” doctrine, Judge Leval writes, “Can it be seriously disputed that history, biography, and journalism benefit from accurate quotation of source documents, in preference to a rewriting of the facts, always subject to the risk that the historian alters the ‘facts’ in rewriting them?” This is in defense of making fair uses of a subject’s letters or diary entries, but it emphasizes the point that a foundational aim of fair use in a non-fiction context is to improve accuracy in reportage and editorial, not to obliterate it.

To make the distinction clear, a user may take a clip of a public figure speaking and slow down key sections for the purpose of emphasizing the statements he believes to be ridiculous, and that would be a form of commentary and, arguably, fair use. But even this simple example is distinguishable from the Pelosi video, which contains no evidence of commentary but was presented as non-fiction work.

Given the inevitability of more fake video to come, some of which will rely on appropriations of existing material, the courts may need to recognize a standard of “false testimony” as an aim that is distinct from commentary, parody, etc.—a use that does not warrant the protection of fair use and should, therefore, be rejected without analysis under the four-factor test.

The Pelosi “Drunk” Video is Libel

When we view the Pelosi video as an example of “false testimony,” it seems only reasonable to conclude that it is libelous. And if it featured regular folk rather than an elected official, this would become readily apparent to the regular folk being smeared. Politicians operate in a pejorative environment and are, therefore, immunized to an extent against many slings and arrows.

But even though this video features the Speaker, this does not rescue the fact that it objectively makes a false statement posing as fact about an individual that could be damaging to reputation and career. After all, if Elon Musk calling someone “pedo guy” on Twitter can potentially be libel, then a video falsely depicting someone engaging in disreputable or illegal conduct very likely meets that standard.

Section 230 of the CDA alleviates web platforms of any civil liability for knowingly continuing to host libelous material, but given the extent to which Facebook is lately twisting itself in knots seeking standards for content removal, perhaps adhering to the spirit of Section 230 would be helpful in that effort. While the statute itself may be flawed, the clear intent of Congress was to encourage good-faith content moderation by site operators, and in that spirit, removing doctored material made with a clear intent to damage a reputation and mislead the public would seem to fit that particular bill.

The Pelosi “Drunk” Video Infringes First Amendment Rights

Calling the video a potentially “unfair use,” my friend and colleague Neil Turkewitz further notes that if a doctored video stands as “false testimony,” then maintaining its presence on a web platform like Facebook implicates the platform in the act of “compelled speech.” Compelled speech is an infringement of an individual’s rights, and while Facebook is under no obligation to uphold the First Amendment, it can certainly elect not to participate in conduct that violates the principles of free expression in this manner.

Compelled speech and forced silence through intimidation are two overlooked downsides of internet culture when it comes to the general ebullience that these platforms have done wonders for the power of speech. If you’ve seen the latest “deepfake” video samples showing static images of Einstein, Marylin Monroe, and the Mona Lisa transformed into talking motion pictures, it’s not hard to imagine how anyone may soon be the target of some personal vendetta. And it’s a safe bet that any victims of such attacks will consider Facebook, or the hosting platform, responsible—maybe in Congress or maybe just in the market.

Guidance for Facebook et al?

We can assume that nobody will raise a copyright issue regarding the source material for the Pelosi clip and that Speaker Pelosi will not be suing anybody for libel or infringement of her speech rights, but I raise these topics because they could be relevant if the material used and the individual(s) maligned were only slightly different. Meanwhile, as Facebook and other platforms try to develop new “community standards” that actually serve the community, it seems to me that existing law provides some rather handy guidelines. Perhaps as an exercise to hone its moderation practices, Facebook’s team might imagine that it is potentially liable for any of these transgressions and then decide how it would handle a similar video they knew to be fake. As I say, ticking off three boxes—copyright infringement, libel, and infringing the individual’s speech right—is probably a good indication that the material should be taken down.

Did the Internet Get Worse, or Were You Not Paying Attention?

In Response to Angela Watercutter’s Grumpy Cat Article at Wired

Dear Angela:

First, forgive me for taking a bit too seriously your lighthearted article of May 17, in which you identify the passing of Grumpy Cat* as a symbol of a bygone internet that was playful and innocent in 2012, but which has since devolved to a world of harassment, divisiveness, and hate speech. Because you refer to yourself as a curmudgeon, allow a presumably older and more ornery curmudgeon to mention that while it may seem as though the internet went south circa early 2016, there were many signs of the reckoning to come. But of course anyone who tried to mention this was called a “luddite.”

Since it was a meme that inspired your article, I will note, for instance, that while you and your friends were having a smile at pictures of Grumpy Cat et al, some not so friendly folks were sharing a meme of the altered Shepard Fairey Obama picture depicting the President as having been lynched and the word HOPE replaced by ROPE at the bottom of the frame. So if we fast-forward from that moment to Charlottesville and the general reaction that, “We thought we were done with this kind of racism and hate in this country,” I am moved to ask why? It was all right there in the newsfeeds and tweet-decks if you chose to look.

Of course, the tech-utopians kept insisting that so long as the internet remains an “open” forum for speech, the good will surely overwhelm the bad. This fallacy spawned a fetish for the virtues of anonymity and raw data dumps of hacked information with the assumption that these new forms of “empowerment” would strengthen democratic societies. Except of course that one cannot strengthen institutions and abandon faith in them at the same time, as we are now witnessing on a daily basis.

Trump’s attacks on the press—a literal threat to the First Amendment—were not his invention, but rather his capitalizing on a trend fostered by millions across the political spectrum who bought into the techno-libertarian idea that expertise like journalism is all just a conspiracy to hide the real truth. Truth was available at a Sub-Reddit of your choosing, and any attempt by its owners to remove or moderate even some very ugly “truths” was portrayed as a threat to the First Amendment.

Speaking of Reddit and ugly truths, 2012 was the year that Gawker exposed the award-winning Redditor Violentacrez as a super-troll who, “issued an unending fountain of racism, porn, gore, misogyny, incest, and exotic abominations yet unnamed.” Remember him? Michael Brutsch hosted the popular Sub-Reddits Rapebait, Chokeabitch, and the melodious Niggerjailbait. And I’m not kidding, Reddit really did give him an award. So, maybe some signs were visible in 2012.

It was in June of 2012 that internet hero to many, Julian Assange, ducked into the Ecuadoran Embassy in London for a few years, his own soon-to-be-grumpy cat in tow, and ensconced himself as the worst house guest ever, in order to avoid extradition to Sweden to face two charges of sexual assault.

Later that year, the group Anonymous, believing that Wikileaks just wasn’t hacker enough, announced “Mayhem 2012”—a day of mass systems and information hacking as a worldwide protest against what they considered censorship and corporate and government control. And because they seem to know more about movies and comic books than history, Anonymous pledged to launch its hack-a-thon in honor of Guy Fawkes Day, but as with the misplaced efforts of the real Fawkes, nothing went boom.

Still the message was clear, and many believed it: the internet was the antidote to all the lies, secrets, and conspiracies that allegedly served as the nexus of every public and private enterprise operating at every level everywhere. We the Sheeple were all just one red pill of a mouse click away from “waking up” to what was really going on. The Obama administration was “draconian,” while an internet Robin Hood like Kim Dotcom, arrested in in New Zealand in 2012, vowed in a Twitter-rant to become “Hillary’s worst nightmare,” by establishing a foothold for his Pirate Party in the United States. (How did we get here? We were already here.)

2012 was the year that European Pirate Party co-founder Rick Falkvinge recommended legalizing child pornography because, among other things, its prohibition might stifle the introduction of Google Glass. Thankfully, Google Glass failed to launch due to the sheer mass of its lameness as a product, and we did not have to legalize the abuse and exploitation of children. And I really think the B-Side of Falkvinge’s hit single was Cody Wilson’s 2012 launch of Defense Distributed, the company that wanted to empower every citizen to 3D print his own firearms because that will really keep the government in check.

And of course the biggest internet story of 2012 was the January defeat of SOPA/PIPA—a watershed moment in “direct democracy” that simultaneously demonstrated the power of disinformation and let Silicon Valley know that they were free to do whatever the hell they wanted. Everything you ever needed to know about how we got to this moment, Angela, is written in that campaign. It had all the elements necessary to tank a perfectly good Republic via social media—outright lies, hyperbolic memes, massive corporate influence, a pavlovian electorate that doesn’t understand the issues, virtual ballot-stuffing, and a lasting effect that continues to misinform long after the event itself has passed.

Concurrent with the industry-backed campaign against that legislation, 2012 was the year that Google began to climb the lobby ladder from one of the lowest rungs to the top five. And it was the year the Internet Association was formed to advocate important civil liberties policies like keeping billion-dollar corporations’ liability shields intact for all eternity. This is the same Internet Association that just announced it will be awarding the Internet Freedom Award to Ivanka (I kid you not) Trump. Bet you didn’t see that coming in 2012.

The internet may have looked all sparkly to you and your friends seven years ago, but maybe that has something to do with spending a little too much time looking at funny memes and not quite enough time paying attention to several warning signs that ought to have made a lot of people way more grumpy.

* This post is in no way meant to comment on the “Grumpy Cat” Tardar Sauce, who was a beloved family pet and recently passed. My condolences.

Photo by Ulianna19970

Author: David Newhoff