Author: 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.

MPAA Forges Voluntary Anti-Piracy Agreement with Donuts

We’re about to start seeing a lot more diversity in web names.  With its slogan “welcome to the not com revolution”, the Bellevue, Washington based Donuts is the largest provider of new domain name registrations with uniqe extensions that offer site owners more options to express their identities via their URLs.  For instance, the company has over 67,000 registrants with the extension .GURU; and as described on their website, Super Bowl 50 was a “coming out party” of sorts when viewers were directed to visit GodsofEgypt.MOVIE to learn more about the release of this major motion picture.

This morning, Donuts has also placed itself at the forefront of OSPs taking voluntary measures to mitigate large-scale online piracy.  In a joint announcement with MPAA, the two organizations have forged a voluntary agreement, which outlines specific conditions under which the MPAA will be treated as a “Trusted Notifier” when reporting sites registered with Donuts that are engaged in large-scale piracy.  Conditions of the agreement place the burden on the Motion Picture Association to provide clear evidence of large-scale piracy of the works it is ahtorized to represent; and it must make a good faith effort to make direct contact with the site registrant prior to notifying Donuts.  Once presented with a referral, Donuts maintains the right to act at its own discretion in determining whether or not the site registrant is “clearly devoted to clear and pervasive copyright infringement” in violation of their Acceptable Use and Anti-Abuse Policy, in which case it may put the domain on hold or suspend it.

Both copyright interests and digital rights activists should applaud this voluntary measure, which could serve as a model for other rights holding entities to adopt similar agreements with major OSPs.  In principle, these private-sector agreements provide tangible options for mitigation of large-scale piracy, but their voluntary nature and structure should mute the usual hew and cry of “slippery slope to censorship” that tends to come with legislative proposals. Absent the opportunity to invoke the boogeyman of “government”, it would seem that any complainants about voluntary measures of this nature will have their rationales reduced to just admitting that they like piracy. At least that would restore some refreshing honesty to the discussion.

Ultimately, this type of voluntary measure is a positive step forward for consumers. The Web has grown fast, and the major designers of our experiences and engagement with digital life have, in a a matter of years, attained the kind of market dominance that historically takes decades.  And that’s fine.  But while scaling rapidly in a free-for-all, Wild West environment is exciting, makes happy shareholders, and yields all manner of free apps and platforms for consumers, we are also lately beginning to recognize significant weaknesses that come with adopting a purely laissez-fair approach to the digital market.

When search results lead users to a nest of clickbait and malware; when advertisers lose value in the digital ecosystem; when seeking information becomes algorithmic manipulation; and when digital predators can exploit the environment to do anything from wasting your time to invading your privacy to taking your money, then the Web fails to be what we need it to be.  OSPs, major businesses, consumers, and start-up entrepreneurs all have a stake in a sustainable digital market; and voluntary measures are an expression of that mutual interest.

On the Serbian Proposal to Abolish Photography Copyright 

Last week, the Serbian Parliament unanimously voted down a proposal to abolish copyright protection in that country for what it called “routinely made” digital photography. In fact, according to the Facebook page Protect Photographers Copyright, even the individual member of Serbia’s ruling Progressive Party, Dusica Stojakovic, who introduced the measure, did not vote for it herself.  This was the second time the proposal to abolish these rights has come up for a vote and was defeated; but professional photographers, especially photojournalists, say the idea is not dead and the fight is not over.

The strangeness of this proposal, particularly coming from the party leading Serbia’s fledgling democracy, is a bit hard to fathom.  After all, the potential of disenfranchising professional photojournalists while leading democratic reform is entirely inconsistent with the stated agenda of the party—not to mention the history of democratic reform.  And in fact, this story by Bogdan Ivanisevic, writing for Balkan Insight, states:

“Abolition of copyright in photographs tout court is not what the ruling Serbian Progressive Party and its partners ever intended.

What they aimed for was to abolish copyright for a subgroup of photographs, those “routinely created” as the proposed text phrased it.

That said, had the ruling majority adopted the text as formulated by parliament’s legal committee, it would have been troubling.”

So, without being Belgrade insiders, we might interpret these events as an attempt to fashion a legal distinction between the professional class of photos and the millions of selfies and snapshots uploaded to the Internet.  And presumably, the professional photographers who have protested this measure agree with Ivanisevic in identifying as “troubling” the overly broad language in the party’s measure, which is stated thus:

“Every routinely made photograph, which appears and is taken in electronic form, regardless of whether it is the true original creation of an author, will cease to enjoy protection as the creation of an author.”

Copyright laws in Europe vary with regard to granting protection to “non-original” photographs, which is to say the courts have differing means of interpreting “originality” in a legal sense. But it is beyond problematic to attempt to make these distinctions at the legislative level. The “amateur” is more than capable of taking a highly original photograph; she may turn professional or take a handful of pictures of great artistic value without necessarily considering herself a “photographer”.  Are the early snapshots of a great artist of no value because they’re not his “serious” works?  What about iconic and invaluable serendipity like the 8mm film of John F. Kennedy’s assassination captured by a tourist named Abraham Zapruder?

Copyright skeptics will answer many of these questions with abolishment or abridgment of copyright protection for all images.  This seems particularly true today in reaction to the ubiquity of images captured and uploaded every second to various web platforms; and this thinking appears to be a factor in Serbia’s Progressive Party as well. But if we look at the history of photography in the US, as well as about 150 years worth of legal theory on the copyrightability of the photograph, the increase in volume of what we might call “casually made” images does not really change the calculus all that much.  In fact, while the US has a very low standard of “originality” in copyright, both the theory behind that rationale and the practical applications of enforcement generally conform to common and reasonable distinctions between “original” and “non-original” photographs.

While it may seem to a casual observer that the question of copyright in the photograph is different today than in pre-Internet times, the truth is that both the theoretical and practical questions currently summon the same discussions as when the medium was first invented. It is common to say that photography—along with just about everything else—has been “democratized” by digital technology; and from this generalization comes the notion that it seems absurd to contemplate a copyright in every one of the billions of images that travel from smart phones to Web servers around the world every hour.  And as a matter of practical application, it is absurd to imagine a copyright in every one of these images, but it is also fortunately not necessary.

For starters, the process of making photos was democratized at least ninety years before the availability of the first personal computer. In 1888, the Eastman Dry Plate and Film Co. introduced the Kodak camera, which they advertised as “The only camera anybody can use without instructions.” And by the early 1970s, if you were me as a child stuck watching your grandfather’s vacation slides, you knew for certain that the Eastman/Kodak company had more than surpassed its goal of democratizing the photographic process. In fact, we can safely assume that, even by the 1950s, there must have been billions of images processed by millions of non-professional photographers all over the world. So, while it may be true that innovations like the smart phone have surely increased the number of images captured by every man, woman, child, and monkey, there was already a staggering volume of “amateur” photos in the world long before the inventors of Instagram were even born.

Moreover, the expansiveness of digital imaging can be somewhat exaggerated as a  justification for devaluing the photograph on principle, particularly when there is a corresponding disposability or invisibility that comes with digital diffusion of casually-made images.  The same technology that makes capture and upload so easy also makes the majority of these experiences fleeting for both makers and viewers. Still, what is unquestionably different today is the ability, in principle, for everyone’s proverbial grandfather to show his vacation photos to the entire world; but this fact alone does not inherently change the conversation about copyrights in photography from either a theoretical or a practical perspective.

The Copyrightability of the Photograph

Almost from the invention of the process, debate began among critics, connoisseurs, and artists as to whether the photograph was in any way a creatively expressive medium or merely a mechanical means for recording data.  And this dichotomy still manifests in the words of photo teachers everywhere, when they ask new students,  What makes a great photograph? It is not by coincidence that this same aesthetic discussion parallels the legal questions of copyrightability; and this is one reason why photography was so influential in the history of copyright law. For the first time, anybody with comparatively little training could make an image, and so grappling with the technology itself helped reshape copyright law for the modern age.  But it is also not farfetched to think that the copyright considerations themselves helped to shape the evolution of photography as well.

Loyola Law School professor Justin Hughes explores these ideas in detail in his paper The Photographer’s Copyright, published in 2012 in the Harvard Journal of Law & Technology.  He explains that from the time photographs were protected under copyright (1865 in the US), judges had to wrestle with more or less the same ideas, theories, and biases as art critics in order to consider what, if anything, makes one of these machine-made images an original work of authorship.

Today, with decades of tradition behind us, we generally recognize that a photograph can be either an expressive work or a mechanical record or both; but in early efforts to identify the hand of the author (i.e. what qualities make a photograph copyrightable), jurisprudence leaned first in the direction of giving weight to the photographer’s process and later in the direction of evaluating the end product, regardless of how the image was made.  The chronology of this thought process is due to the fact that the first case to come to the Supreme Court in 1884—which involved the infringement of a studio portrait of Oscar Wilde made by Napoleon Sarony—forced the Court to seriously consider the defendant’s argument that photographs should not be copyrightable at all. Thus, their analysis of the image known as Oscar Wilde No.18 focused on the specific choices made by Sarony in the studio in order to capture a brief moment of reality.

This identifying “originality” (in the legal sense) by examining the process of the photographer can be objectively expedient when the choices made by the author are readily apparent, as would be the case with a contemporary fashion photograph made with models, props, lighting effects, etc.  But this line of analysis becomes more problematic when considering a photograph of a documentary nature, like a landscape, street photograph, or the work of photojournalism—all examples in which the photographer cannot possibly control many of the elements that constitute the resulting image.  Furthermore, as Hughes discusses, these documentary images must also be compared and contrasted with photographs that are purely mechanical and/or made for the sole purpose of recording data—like surveillance imagery, mapping, or evidence.

For instance, what is the difference between the evidence-gathering photography of a police officer investigating a homicide in 1941 and one of the now-famous photographs taken by Wegee (Arthur Fellig) at the same crime scene? No doubt, many people can answer that question from an artistic perspective, but in reviewing the legal theory from the 1860s to the present, Hughes describes judicial views that sound not unlike those of the art or cultural critic. In other words, the features that make Wegee’s photo more expressive and more engaging than the photos taken by the detective also happen to make it more copyrightable. Hughes notes this subjectivity when he writes, “Where we think it is fair to offer legal protection, we will be more likely to find copyright sustaining originality.”

Hughes reports that in 1903, Justice Holmes introduced the notion of personality to the discussion in the case Bleistein v Donaldson Lithographing Co. This is the moment when copyright law becomes as universally available as photography itself.  Hughes writes, “Bleistein provided American law with an originality threshold low enough that all can enter, giving us a deeply egalitarian, democratic copyright law that has neither place nor need for the creative genius.”   From this notion comes the idea of “seepage”, which is used by copyright scholars to describe the notion that even when multiple individuals engage in the same creative action (e.g. tourists taking pictures of a national monument), that each individual cannot help but imbue her own images with her personality—that the individual’s character seeps into the work.

This low threshold of originality might appear to invite the aforementioned absurdity of billions of copyrights in billions of mediocre images, but not quite. Because concurrent with this egalitarian approach to originality for broad protection under copyright comes an equally thin patina of analysis as to precisely what may be copyrightable within a specific image, and in what contexts.  From the analyses applied in specific cases, we learn that there can be considerable similarity between two images, both of which can have a copyright, and neither of which necessarily infringes upon the other. These analyses can factor greatly in a specific case—particularly if it’s creator v creator—but for the broader question of copyrightability, it was first sufficient that the author asserted originality, and then after 1976, that photographs would be entitled to the same automatic copyright as all other works

This brings us to a practical reason why the Serbian proposal is so unnecessary—at least insofar as its Parliament might look to US copyright law for guidance–and this is the matter of registration.  Because while it is true that every US citizen who snaps a photo does have an automatic copyright in that image, this is functionally irrelevant in most cases unless the individual registers the image with the Copyright Office.  This is due to the financial realities of litigating an infringement claim in federal court.  If an image is registered, the rights holder may seek statutory damages for infringement, which is essential because proving actual damages from a use is a much more challenging legal argument to present.

So, unless the image owner has the resources to spend in an effort to prove actual damages in an infringement case—this by the way implies that photography is probably his/her profession—the inability to claim statutory damages (due to non-registration) is a barrier to engaging a litigator to pursue a case at all.  Hence, while there may be billions of non-professional images out there, even very good ones, there are likewise billions of reasons these will not be registered in jurisdictions in which an infringement claim is feasible.  Moreover, simply by choosing to upload personal pictures to certain platforms, the photographer cedes considerable—if not all—grounds for an ownership claim in the image as stated in some Terms of Service.  If anything, the new realities of the digital age ought to give “amateur” image makers a moment’s pause to consider the implications and rights associated with the photos they share rather than going the other direction of abandoning IP rights as obsolete.

Rather than rephrase the Serbian proposal—particularly if it is a reaction to digital ubiquity—the Progressive Party should abandon the idea that it is necessary, possible, or democratic to attempt to define at the legislative level “originality” in photographic works. The US has automatic copyrights, a low threshold of originality, trillions of “amateur” photographs, a vibrant professional, art, and journalism class of photographers; and our courts are not overrun with infringement cases in these works. For the sake of free expression, for journalism, and for economic development, the Serbian Parliament should affirm a copyright in all photographs and let their courts settle actual disputes.

Sarah Jeong Pitches Copyright Conspiracy Thriller

In what sounds like an homage to Tom Clancy, Sarah Jeong, a contributing editor to Motherboard, presents us with a cautionary action thriller in which the Chinese government could theoretically disappear one of the most famous and politically significant photographs ever taken. And all because of American copyright law.  You know the photo. It’s the image that comes immediately to mind when you think of the 1989 Tiananmen Square protest—the still-unidentified young man who stood in front of a column of four Peoples Liberation Army tanks, taken by AP photographer Jeff Widener.

In her recent editorial, Jeong speculates that a Chinese company called Visual China Group may now own the copyright on the iconic image as the result of its purchase of a collection of works that had belonged to Bill Gates.  Jeong states that she does not know if the Widener photo is among the works purchased—there are other “Tank Man” images—and she further mentions that VCG has entered into a licensing partnership with US-based Getty Images.  Nevertheless, Jeong insists that her hypothetical censorship scenario is “not entirely implausible”, citing unpredictability of the Chinese government and proposing a scenario in which the photo may be widely removed from the Internet by means of DMCA takedown procedures.  In asserting that this already multi-hypothetical circumstance would be entirely the fault of American copyright law, the deus ex machina in Jeong’s plot hinges on the following supposition:

“As owners of the copyright to the photo, Visual China Group could easily launch a massive censorship campaign across the internet. The group only needs to send a notice under the DMCA to upstream service providers that host the Tank Man photo—Google, WordPress, Amazon Web Services, Wikimedia, Facebook. If a DMCA notice is valid, a service is required by the law to take down infringing content—or else it can become liable for copyright infringement.”

Of course, nothing she describes reflects an accurate portrayal of how DMCA works, even if Chinese authorities did currently have their hooks into this particular photo.  As rights holders know all too well, an individual notice must be sent in regard to each alleged infringement.  One may not simply send a blanket notice to WordPress and say, “Take this off every WP blog.”  Then, as explained in considerable detail in my last post, the counter notice is still the final word under DMCA provisions, after which the rights holder must litigate in order to pursue removal.  But apparently undaunted by her basic misunderstanding of this aspect of copyright law, Jeong presses on with the following:

“Although fair use could cover use of the photo, thus giving a service provider an excuse not to honor the DMCA notice, that’s by no means a certain defense. See, for example, Fox News’ legal troubles over a copyrighted photograph of firefighters on September 11th—although the news organization cited fair use, a judge denied its motion for summary judgment on the issue, and Fox News ultimately settled the issue out of court.”

It’s a little hard to tell if Ms. Jeong is writing carelessly here or simply doesn’t understand the safe harbor provisions in the DMCA, but nobody should be confused into thinking that it would be the OSPs like Google, WordPress, et al who would be asserting any kind of fair use defense in a theoretical infringement claim of this nature. It’s the individual uploader of the material who is the actual recipient of a takedown request processed through the OSP, and it is he or she who may decide to argue that the use is non-infringing.  The safe harbor shielding OSPs is predicated on the idea that they don’t see nothin’, they don’t know nothin’, and they don’t say nothin’ ‘bout no infringements by its users.

To make matters…worse?  Stranger? Sillier?  I don’t know.  Jeong randomly points to a case in which Fox News’s motion for summary judgment based on a weak fair use claim was appropriately rejected by a district judge; and she cites the example as if this one case is evidence that fair use defenses just don’t work.  Well, tell that to the same Fox News, which has thus far lost to TVEyes on the latter’s somewhat questionable fair use defense.  But as long as Jeong is already wet, she dives all the way into the deep end with this inscrutable speculation:

Journalistic usage of the Tank Man’s photos—which persist in newsworthiness and historical value for the public—should be obviously covered under fair use, but the actual copyright analysis isn’t much different from the Fox News lawsuit. And if that’s the case, perhaps copyright law is broken.

It is possible, of course, that Ms. Jeong doesn’t realize that news networks, photojournalists, reporters, etc. are all copyright holders and that these folks do not make a habit of poaching one another’s intellectual property on the grounds that they are doing the noble work of reporting the news. (This would be rather circular logic for infringement of journalism.)  But for sure, she either did not read—or does not remotely understand—the facts in the Fox News case to which she refers because the network’s fair use defense in that instance hinged on its argument that its use of North Jersey Media Group’s image on its Facebook page was “transformative” simply because it was hosted on a social media platform.

Perhaps one day a court will agree with a TV network or General Motors or Pfizer that its Facebook page is indeed a little haven of fair use, at which point we can ball up the fair use doctrine and toss it in the fire.  But for now, it is nearly impossible to imagine whence Jeong conjures the idea that her tens of thousands of hypothetical conflicts over the Widener image might each resemble the “analysis” applied in this one Fox News case. In fact, I’m not sure the district judge analyzed the fair use argument all that carefully so much as he just summarily called “bullshit” on it.

Naturally, the subplot in this Sino-censorship-via-American-copyright story is the implication that passage of the Trans Pacific Partnership will make matters worse by way of exporting DMCA-like procedures to US trading partners.  But even if Jeong’s censorship concerns were well-founded, what they might have to do with this trade deal is a mystery.  As far as China goes, when that government wants to censor something, I think they just censor it the old fashioned way.  And with regard to the US, nothing in the TPP would make her already exaggerated scenario work any better because the trade deal doesn’t implicate any change to domestic IP law.  But the real irony I just can’t let go is that while Jeong generalizes her concern that the “American government is exporting strict copyright law” to other countries, she may not be aware that it is Google and other major OSPs that have pushed as hard as anyone to export DMCA notice-and-takedown procedures abroad because its safe harbor provisions serve their interests.  To quote from an Internet Association statement on Tumblr,  “The Internet Association continues to push for strong policies such as DMCA to be incorporated explicitly in the TPP treaty itself to ensure a strong, robust Internet ecosystem.”

Finally, I think Ms. Jeong and her readers might want to breathe into a bag for a while before getting too stressed about China making its human rights record disappear into Santayana’s axiom by way of US copyright law.  I remember where I was at that time in 1989; I was watching CNN broadcasting its very dramatic video footage of this brave young man facing down the tanks—footage CNN still owns and that can still be licensed for educational and other uses.  This is to say nothing of the myriad uses of the Widener photo that no entity is likely to stuff back into the bottle—let alone stifle legitimate fair uses.

Above all, this chronic hyperventilating over the prospect that copyright makes things disappear is not only carelessly reasoned but also places way too much value on social media and other ephemeral Web platforms as repositories of important information.  As Jeong herself proves with this particular article, anyone can put anything on the Internet without the burden of even a good faith effort to be accurate.  And this is probably a more effective a way to burn the proverbial history books than anyone’s attempt at censorship.