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.

Privacy in an Age Without Any

I join millions of Americans—the vast majority in fact—in feeling both dismay and anxiety at the near certainty that Roe v. Wade will be overturned. Abortion is not a subject for the editorial scope of this blog, but because the issue historically intersects the right of privacy—and because enforcement of the most draconian laws now on the books in several states implies substantial invasions of privacy—it is worth asking what happens next in a society that has largely sacrificed privacy to its technological toys?

In 1992, Ruth Bader Ginsburg, as part of the Madison Lecture series, discussed the assailable weaknesses in Roe, including her view that it was decided on the wrong question—the implied right of privacy rather than an affirmative right of non-discrimination. She further argued that Roe was so overbroad an opinion that it stymied judicial and political progress at the time, trending toward mitigating or ending sex-based discrimination. “Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable,” Ginsburg wrote before contrasting Roe with contemporaneous decisions that she believed supported a more solid, if narrower, holding.

Although I personally agree with Justice Ginsburg that privacy was not the ideal foundation on which to base a woman’s right to seek an abortion, Roe’s unstable purchase on the privacy right comes in a moment when, for all practical purposes, privacy does not exist.* Regardless of the constitutional questions raised by Ginsburg et al., both the tenor and the letter of the state laws being written, or discussed, reek of religious fundamentalism and medieval encroachments into the most personal matters of people’s lives. And we must acknowledge the implications of enforcing those laws in the age of the cellphone and the social media profile.

What started with reconnecting with old friends via Facebook bloomed into so much personal data—even information shared unintentionally—that algorithms can not only predict outcomes, they can be used to effect outcomes. There is no need to reiterate the many world events thus far shaped by the manipulation of Facebook data alone. But suffice to say that if some well-financed interest wants to know the intimate details of a complete stranger’s sex life—or the same about a whole community (e.g., all the women at a particular college)—we have already shared more than enough information for an algorithm to produce fairly accurate results.

I don’t think it is farfetched to say that we are past the point when a state actor or political action group can theoretically purchase data which can then be used to predict when a woman intends to end a pregnancy, let alone know whether she already has. Add this to the kind of vigilantism being codified into state laws, and the harm beyond the abortion right itself flows into every vein of our civil liberties.

If Texas or Missouri, for instance, seeks to proscribe access to pharmaceutical abortion and/or travel out of state for a procedure, does this imply that women will need to abandon their right to maintain social media profiles or that they’ll need to use burner phones like drug dealers just so they can make their own medical decisions? The interpretive capacity of AI has already proven to be highly effective and dangerous. No woman needs to announce over Twitter that she’s on her way to the clinic. On the contrary, Google’s promise to “know you better than you know yourself” is only partly a PR statement because the boast correctly describes how powerful data interpretation at scale can be.

Outlandish fears? I doubt it. Not based on the evidence so far. Increased harassment of women—including crossover from cyberspace to real space—is already a sad reality of life plus social media. And there is no reason to believe that the intersection of misogyny and anti-abortion zeal will not be amplified and extended through the use of these technologies.

Whether Ginsburg et al. are correct that Roe galvanized the anti-abortion movement into a force that otherwise may not have materialized, it cannot be denied that the fervor of that opposition today is willing to deploy any tools available in the pursuit of its crusade. In a time when we should be criminalizing abuse of these technologies to spy on, harass, or surveil our neighbors, the state laws upheld by overturning Roe all point us in the opposite direction.

* I do not mean to imply that this Court would uphold abortion rights under any claim, but merely illustrate a distinction from the privacy foundation.

Image by: kentoh

Warhol Foundation v. Goldsmith at SCOTUS Part I: The Transformative Question

Copyright watchers were surprised when the Supreme Court granted Andy Warhol Foundation’s (AWF) petition for certiorari in its case against photographer Lynn Goldsmith. For deeper background, see older posts, but this is the dispute over Andy Warhol’s “Prince Series” silkscreen images of rock legend Prince made in 1984 using Goldsmith’s unpublished 1981 portrait photograph as a reference image.

In March of 2021 the Second Circuit held that Warhol’s use of the photograph was not a fair use and then denied Warhol’s petition for rehearing in August 2021, specifically responding that the SCOTUS decision in Google v. Oracle was not a basis for reconsideration. AWF filed its petition for cert in December, and we can expect a flurry of amicus briefs this Summer as copyright advocates and critics argue for opposite outcomes on what could be seminal fair use guidance by the Court. AWF’s petition rests almost entirely on part one of factor one of the fair use analysis, which considers that bugaboo doctrine called “transformativeness.” From the AWF brief Summary:

… the district court concluded that the Prince Series was “transformative” because it incorporated a new meaning and message, distinct from the Prince photograph from which it drew. Despite agreeing that Warhol’s new work “give[s] a different impression” than the original, the Second Circuit nonetheless concluded that the work was not transformative (and thus not fair use) because the photograph “remain[ed] the recognizable foundation upon which the Prince Series is built.

The doctrine of “transformativeness” was introduced to fair use jurisprudence in 1990 in a paper by Judge Pierre Leval of the Second Circuit Court of Appeals, and it was most famously first invoked in the 1992 Supreme Court decision Campbell v. Acuff-Rose. There, the Court held that 2 Live Crew’s “Pretty Woman” was a parody of the Orbison/Dees song “Oh, Pretty Woman,” and that factor one, therefore, favored a finding of fair use.

I have written in other posts about this case that the “transformative” test is a uniquely troubling, if not almost useless, consideration in the world of fine art. I hold this view because the fair use doctrine evolved on the principle that the user of a work would, in general, comment in some way upon the work being used. This is evident in the paradigmatic examples listed in §107 of the copyright law—”criticism, comment, news reporting, and teaching.” While not intended to be an exhaustive list, it is not coincidental that these examples, and their subordinates like “parody,” all imply saying something about the work allegedly infringed.

In Campbell, the Court does not stray beyond the boundaries of this analysis. On the contrary, in holding that “Pretty Woman” was a parody of “Oh, Pretty Woman,” the Court remained well within the interpretation that factor one of the fair use analysis initially looks for evidence of commentary upon the original work. It was not necessary that the “transformative” language, adopted from the Leval paper, be part of that analysis, which is otherwise consistent with prior courts’ holdings on “parody”…

…the heart of any parodist’s claim to quote from existing material, is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works….If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger.

Among the difficulties with the language of “transformativeness” and the decision in Campbell is that it includes much broader language, which AWF now cites to argue that a use favors fair use under factor one if it conveys “new meaning or message” that may be distinguishable from the original work. This is one of two problematic interpretations of the broad term “transformative.” The other problematic interpretation is a use that “expands the utility” of the original work(s), as applied in Google Books—an opinion written by Judge Leval, which begins with the sentence “This copyright dispute tests the boundaries of fair use.” Of course, the “expanding utility” claim is not asserted in Goldsmith.

As I have said in the past, comment upon the original work quite often does not exist in fine art contexts, and it certainly does not exist in the case of Warhol’s Prince Series. Warhol’s images do not comment upon Goldsmith’s photograph in any way, and AWF does not argue otherwise.[1] Instead, relying upon the broader “new meaning and message” principle, it claims that the screens convey “something different” from the photograph. In fact, I agree that this is true but disagree that this favors a finding a fair use under factor one.

Different meaning may be present, but if the secondary work does not contain at least some element of comment upon the original, there is no rationale keeping the first factor analysis from spilling over the levy quoted above in Campbell. AWF, for instance, asserts that the Warhol screens convey “Prince as icon” in contrast to Goldsmith who contends that her photo expresses “Prince as vulnerable budding star.” Both interpretations are well-founded in the context of art appreciation but irrelevant in regard to copyright law. The differences between the two works, absent any evidence of commentary, becomes a vague consideration that is indistinguishable from satire or other broad purposes historically held not to be fair uses as a matter of law.

This is one reason why the “transformativeness” concept has caused so much trouble:  because it leads courts to find fair use solely on the basis of “some difference,” and this implies a fair use doctrine without limits. Certainly, this is the outcome the copyright skeptics would like to see, but it is not good law, and it is aggravated by the fact that factor one has often weighed too heavily in the four-factor test. My gut says that the Court should find that AWF’s defense fails on the “transformative” analysis in factor one and in doing so, should reaffirm the holding in Campbell stating that where no commentary upon the original work exists, “other factors will loom larger.”

But having said that, I cannot deny that I personally believe that the Warhol screens convey something substantively different than the photograph, which goes to the other question the Court should address if it hopes to untangle the “transformative” knot at all, and this is whether the Warhol works constitute unlicensed “derivative works.” Certainly, we have seen findings of “transformativeness” under fair use analyses encroach on the derivative works right, which is no surprise when the definition of a derivative work describes “…any form in which a work may be recast, transformed, or adapted.”

It would be easy enough to hold that the Warhol screens are derivatives requiring license from Goldsmith to produce, but I believe the nature of the photograph—indeed of many photographs—may militate against such a finding. More on that in the next post about this case.

[1] In fact, any claim to the contrary would be muted by the fact that the work at issue is an unpublished photo, which conflicts with the Court in Leibovitz v. Paramount, which held that the public must be reasonably conscious of the original work in order for the defendant to claim that he is commenting upon it.

U.S. Court Orders Pirate Site Blocking. Internet Should Break Any Day Now.

And if it did, really at this point…?

As reported on TorrentFreak yesterday, the District Court for the Southern District of New York handed down three nearly identical rulings in copyright infringement complaints against three pirate streaming entities. Finding for the plaintiffs, who comprised several Israeli film and entertainment companies, there was nothing remarkable about the outcome of the decisions but for one feature. The pirate site owners, who did not defend themselves or appear in court, lost by default judgment, and the plaintiffs were awarded statutory damages to the maximum $150k per infringement for a total of over $23 million for all three suits.

But Andy Maxwell at TF is right that what is unique about these decisions is the district court’s order to all U.S. ISPs, which states the following:

IT IS FURTHER ORDERED that all ISPs (including without limitation those set forth in Exhibit B hereto) and any other ISPs providing services in the United States shall block access to the Website at any domain address known today (including but not limited to those set forth in Exhibit A hereto) or to be used in the future by the Defendants (“Newly-Detected Websites”) by any technological means available on the ISPs’ systems.

In other words, site blocking—a form of injunctive relief that has been applied in Europe, Canada, Australia, and other democratic countries (without breaking the internet), but which has historically not been so vigorously applied in the U.S. as this order demands. Stay tuned for wailing and gnashing of teeth from the internet industry and the usual network of “digital rights” groups proclaiming this decision a disaster in the battle for internet freedom and the speech right. And as Andy forecasts, we will likely hear renewed incantations of the acronym SOPA. “More than a decade after U.S. lawmakers scuttled the controversial SOPA legislation that would’ve required ISPs to block pirate sites, a US court has demonstrated that the ability to block sites has been available all along.” he writes in his intro.

And that’s not entirely without merit. One reasonable criticism of the SOPA/PIPA legislation was to ask whether it was somewhat redundant in light of the fact that injunctive relief of this nature was and is already available to the courts. Ordering an unnamed third party in a complaint to cease facilitating harmful conduct is not groundbreaking law, which is one reason why all the shouting about that legislation ten years ago was so ridiculous.

Still, stay tuned for the Knights Who Say SOPA to say SOPA once again in the hope of frightening people into believing that blocking access to a few criminal websites will lead to the death of the “open internet.” And this makes me think of a twist on another Monty Python routine, only in this case, the irony is a bit different. Because what has the “open internet” done for us other than conspiracy theory run amok, teenage suicide and depression, help turn America’s conservative party into a religious cult, allow rampant data leaks, aid an coup d’etat by a U.S. President, destroy the right of privacy, violent insurrection at the Capitol, novel ways to harass women, and battering the Fourteenth Amendment to a rhetorical pulp? Other than all that, what has the open internet done for us? Cue Michael Palin: “You can wish people Happy Birthday.”

I know. There are some other benefits, even on social platforms, and I use them myself. But the funny thing is that we can have those benefits without the lawless free-for-all bullshit promoted under the banner of “openness.” In the meantime, site blocking a few pirate sites? Bring it on.