Category: Law & Policy

Georgia v. Public Resource: Much Ado About Very Little

I was on the fence with regard to commenting on Georgia v. Public Resource. Its details are arcane, rather dull, and, despite rising to the level of a Supreme Court decision, is generally inapplicable to copyright law. In essence, the Court succeeded in commenting on a matter of contract law because the upshot of this will be that States seeking to hold copyrights in the kind of works at issue in this case will simply amend their relationships with the private third parties that produce such works. I think my biggest resistance to this story was summarizing the facts because holy moly are they boring! So, here they are, cut and pasted from the SCOTUS Syllabus:

The Official Code of Georgia Annotated (OCGA) includes the text of every Georgia statute currently in force, as well as a set of non-binding annotations. The annotations typically include summaries of pertinent opinions of the state attorney general, and a list of related law review articles and other reference materials.  The annotations were produced by Matthew Bender & Co., Inc. a division of LexisNexis Group, pursuant to a work-for-hire agreement with the Code Revision Commission, a state entity composed mostly of legislators.  

Respondent Public.Resource.Org (PRO), a nonprofit dedicated to facilitating public access to government records, posted the OCGA online and distributed copies to various organizations and Georgia officials. The Commission sued for copyright infringement; PRO argued that the entire OCGA, including the annotations, fell in the public domain. The District Court held that the annotations were eligible for copyright protection. The Eleventh Circuit reversed.

So, to clear up one possible confusion about this case, what was NOT at issue, despite some murmuring you may get from the blogosphere, was any question that the law can be copyrighted. It cannot. That question was generally settled in the very first copyright case considered by the United States Supreme Court in 1834 known as Wheaton v. Peters. At issue here were those annotations, the descriptive summaries of either case law or statutes; and there is no controversy as to whether annotations in general can be the subject of copyright. They can. So, what was the big whoop in Georgia v. Public Resource?

The not-so-big whoop came down to the majority’s opinion, written by Justice Roberts, about the relationship between Georgia’s Code Revision Commission and the private party, Matthew Bender, hired to produce the annotations. “Under the agreement, Lexis drafts the annotations under the supervision of the Commission, which specifies what the annotations must include in exacting detail. The agreement also states that any copyright in the OCGA vests in the State of Georgia, acting through the Commission.”

What that boils down to is that because Lexis was contracted under a Work Made For Hire (WMFH) agreement, the Commission is the “author,” and is, therefore, barred by this decision from owning copyright on the grounds that the Commission is acting in its official capacity as an extension of the state legislature. At least that’s what the majority held, albeit after a longwinded tour through the nineteenth century meaning of “author” that I frankly cannot be bothered to summarize here because it hardly matters.

Suffice to say the Georgia decision changes nothing in the longstanding doctrine that works written by judges and legislators, as part of their official duties, may not be copyrighted. But if you read the mercifully crisp dissent written by Justice Ginsburg, joined by Justice Breyer, the distinctions she describes about annotations makes one thing abundantly clear—they are optional. “Annotations aid the legal researcher, and that aid is enhanced when annotations are printed beneath or alongside the relevant statutory text,” Justice Ginsburg writes. “But the placement of annotations in the OCGA does not alter their auxiliary, nonlegislative character.”

States have to make their statutes and court opinions freely available to the public, but they are not obligated to hire a company like Matthew Bender to create annotations that serve as a convenience to the reader. Somebody has to get paid to do the annotating work, and the State’s copyright in the OCGA was just one way to skin that particular cat.

One possible outcome of this decision could be that some states get out of the “official” annotation business, leaving a company like Lexis to still do the work but also own the copyrights. Or the states could simply restructure the way they work with third parties, like dropping the approval process and/or revising the contracts. Or they could just stop producing annotations altogether. So, all in all, much ado about nothing for the Supreme Court, but perhaps a nice respite from larger storms brewing.

Still, Mike Masnick at Techdirt seemed to feel there was a lot to say about this case, presumably because he does present it in his post as a matter in which the state was “locking up its laws under copyright.” That would be a big deal if it were true, but the error explains why Masnick characterizes Justice Ginsburg’s dissent as exemplary of what he calls her “copyright maximalism.” I still maintain, as I wrote years ago, that I have no idea what a copyright maximalist is, but if RBG is one, sign me up. Because just maybe there is a correlation between Justice Ginsburg’s notorious support for authors’ rights and her no-bullshit distillation of this nothing of a case.

Thanks Big Tech. But We’ll Still Need to Talk.

About ten minutes after the world went into self-quarantine, and we all instantaneously became more dependent on internet platforms, you could almost hear the keyboards clacking, as various pundits raced to announce that the techlash is officially over. And that it never should have happened.

For instance, Ryan Bourne of the libertarian CATO institute said as much. Writing on April 9 for The Telegraph, he declared, “In many ways, our current crisis is seeing the promise of Big Tech fulfilled. The value of greater online connectivity – tech ‘bringing us together’ – has never been clearer. HD quality video calls allow the elderly to continue to see grandchildren while in isolation.”

Cue montage for every anthemic Google TV spot we can expect to see in the near future. And to be fair, we cannot deny that internet platforms do provide resources and capabilities that, in an emergency like the present, go from being merely important to absolutely essential. We do not need to list the many ways in which digital technologies and internet platforms are sustaining many basic functions and some semblance of commerce at the moment. We’re all living those examples every day. 

In case you happen to be unfamiliar with the term techlash, it is shorthand for describing the general shift in attitude, beginning in early 2016, when the public, the media, and lawmakers all, rather suddenly, opened up to the idea of holding the major platforms responsible for some of the content they host and/or the data they abuse. This change in mood was of course sparked by revelations that Russian agents had meddled in the 2016 U.S. election, that troves of Facebook user data was used by political manipulator Cambridge Analytica, and that our social platforms were full to bustin’ with “alternative facts.” 

While many pundits, and the internet companies themselves, will continue to burnish Big Tech’s image against the contextual stone of COVID-19, there were some rather important policy discussions just beginning to take meaningful form when the microbes hit the fan.  And we should most certainly not, as Bourne proclaims, “… put the crude ‘reining in Big Tech’ agenda straight into the policy dustbin.” Granted, he is primarily responding to anti-trust action in the EU and murmurings of same in the U.S., arguing, “The benefits of winner-takes-most competition right now are clear.” And while the breaking-up Big Tech discussion deserves its own forum, there are other matters on the table.

As a general statement, Bourne’s conclusion is irrational, given the impetus for its writing. The more a private industry proves itself to be of vital public interest, the more it deserves fair but rigorous public scrutiny. It would be preposterous to decide, now that we’ve seen how much we rely on Big Tech, that these companies should be allowed to do whatever the hell they want. Though I get why a libertarian would say otherwise. 

Specifically, there was a very critical policy debate (long overdue) that was finally taking place, thanks in part to the so-called techlash. And if we were to take Bourne’s dustbin comment seriously, we would only succeed in sweeping whole dust bunnies of unresolved problems back under the rug. That conversation is whether all platforms should continue to enjoy absolute immunity from civil liability for harm caused by means of certain content they host and, quite often, monetize. 

Harassment victims, whose troubles are exacerbated by the liability shield, Section 230 of the Communications Decency Act, will still have a complaint or two when this crisis is over. Likewise, creators, whose music, photos, films, etc. are chronically pirated via platforms immunized by Section 512 of the Digital Millennium Copyright Act, are hardly finished having that conversation. After all, it only began in earnest on February 11, when the Senate Judiciary Committee held its first hearing in what was scheduled to be a yearlong review of the DMCA. 

When those hearings resume, I imagine we will see a lot of post-crisis inspired enthusiasm for Big Tech seep into testimony on the Hill and the talking points of Silicon Valley’s network of activist/PR agencies. It is easy to anticipate, for instance, declarations like, COVID-19 revealed just how essential internet access is for everyone, and, therefore, no provision should ever bar that access. 

In context to the DMCA, this would be a swipe at §512(i), which requires that a platform wishing to avail itself of the “safe harbor” provision, must implement an effective termination policy for repeat copyright infringers. COX Communications is now the poster child for what happens when an ISP implements a Potemkin termination policy, having lost a one-billion-dollar lawsuit in December 2019.  In its amicus brief on behalf of COX, the EFF cited access to education, employment, and government services as rationales; so it is a safe bet these same arguments, though unpersuasive to date, will be reinvigorated by the coronavirus experience.

Naturally, if the ISPs were persuasive that access is a human right, this could abrogate the “repeat infringer” provisions of Section 512. And while there is reason to be skeptical that the ISPs can successfully argue the “access as right” principle as a matter of law, the generalized “importance of the internet” trope has been used for years to militate against holistic enforcement of the statutes as they are written. (Also, I would not expect the access providers to take the human right principle so far as to offer free access to all during a crisis, though I would applaud them if they did.)   

As noted in my post about the second DMCA hearing, Professor Justin Hughes observed that §512(j), which provides for injunctive relief by means of site blocking, has hardly been implemented in the United States. And despite a preponderance of evidence that site-blocking has been effective in other jurisdictions in combating piracy without harm to speech rights, I imagine we can expect a litany of headlines and memes saying things like, Imagine your child can’t get her homework done during the next crisis. Tell Congress no site-blocking.

Of course the homework thing (and related examples) will have nothing to do with implementing §512(j), but trivial realities have never stopped the “digital-rights activists” from engaging in this kind of hyperbole before. Why would they restrain themselves in a climate of renewed ebullience for Big Tech that will probably follow the ebb of this pandemic? 

By all means, let us share a golf clap in recognition of the fact that, thanks to internet platforms and related technology companies, many of us can adapt to functioning at a distance in this strange and difficult moment in history. But let’s not trip over ourselves in fawning adulation. These encomiums to Big Tech are typically overbroad, presuming to conclude that the benefits of an industry obliterate the public interest in holding that same industry accountable for any potential harms. No corporate entity deserves that much free rein. Not ever. When this crisis subsides (and I hope it subsides), we will all need to heal in one way or another, and after thanking Big Tech for all it can do, and has done, we’ll still need to talk about a few things.

Photo by: Ansonlu

A Court Did Not Rule that Uploading Works Terminates Copyright. But…

On April 14, Eric Garder, writing for the Hollywood Reporter, published a story under the headline: Court Rules Photographer Gave Up Exclusive Licensing Rights by Posting on Instagram. There is nothing technically wrong with that headline—and Gardner did not, I believe, misrepresent any facts in his article. But when I saw photographer Doug Menuez share this story on Facebook the other day, I had the same gut reaction that I bet a lot of visual artists and copyright watchers had. Those words “gave up” made me think, Great, some judge has actually ruled that posting an image on a social media account extinguishes all copyright in the work. (Yes, that is how the nerd in my head always talks.)

I noticed that copyright attorney Leslie Burns, who represents many photographers, bemoaned on Twitter the fact that this story is already being described as one in which uploading to Instagram et al automatically terminates copyrights. That is certainly not what the judge ruled in Sinclair v. Ziff-Davis and Mashable earlier this week. But there is still much to this story—a good news/bad news tale—that should be of great concern to copyright owners. 

The good news is that Judge Kimba M. Wood of the District Court for the Southern District of New York (SDNY) did not articulate any new opinions whatsoever with respect to copyright law. The bad news is that what happened to professional photographer Stephanie Sinclair is yet another reminder that the major tech platforms are predatory animals whose Terms of Service are toxic to creators. Here are the basics …

Sinclair, like many a visual artist needing recognition, posted her work on Instagram under a Public account. On March 16, 2016, Mashable published an article about women photographers and displayed Sinclair’s unlicensed photograph by means of embedding, using Instagram’s API by pointing to the file located on Instagram’s servers. Anyone who might want to interject that the “server test” protects Mashable, hold that thought.

The simple, unfortunate reality is that by uploading her work, the copyright owner “grant[s] to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to the Content that you post on or through [Instagram], subject to [Instagram’s] Privacy Policy.” In a nutshell, Sinclair, and every other creator uploading works to a Public account, grants Instagram this right to sub-license those works. 

In fact, as Terrica Carrington of Copyright Alliance notes, “These licenses, which are very similar for all the major platforms, are so broadly written that Instagram could, in theory, sub-license a visual work to any party for any use by any means, and even charge the sub-licensee money for it. We haven’t seen the platforms do anything this bold, and they might never do it because it would be bad PR, but the Terms of Service are written broadly enough to allow them to do it legally.”  

Of course none of us reads the Terms of Service (TOS), and for two very good reasons: first, because these agreements are epic and barely comprehensible (Instagram’s runs over 17,000 words); and 2) because opting out of social platforms is not necessarily a viable choice, especially for creators who need a certain amount of publicity to survive. (See what artist Dima Yarovinsky did with the Terms of Service contracts for seven of the most popular platforms.)

Remember that tech-utopian mantra that was popular a few years ago? It went something like, The problem for creators isn’t copyright, it’s obscurity. That was shorthand for the insidious proposition that social platforms provide free venues for creators to expose prospective consumers to their works. While this was/is true to an extent, many experienced creators and rights advocates also pointed out that free publicity channels aren’t worth much, if the same platforms create both motive and means for rampant, unlicensed use of works. 

Sinclair notes this rock-and-a-hard-place issue in her complaint, to which Judge Wood replies, “Unquestionably, Instagram’s dominance of photograph-and video-sharing social media, coupled with the expansive transfer of rights that Instagram demands from its users, means that Plaintiff’s dilemma is a real one. But by posting the Photograph to her public Instagram account, Plaintiff made her choice. This Court cannot release her from the agreement she made.”

As a practical matter, Sinclair’s untenable litigation is a cautionary tale in which the lesson may be that creators should never upload works they intend to protect onto these platforms. Indeed many photographers do adopt such a policy, but that can be a very difficult decision for many. To echo Sinclair’s point, it is a fine line between social platform as opportunity and social platform as a mandatory appendage one must accept in order operate in the contemporary market at all. File this under the heading the internet giveth, and the internet taketh away. 

So What About That Server Test?

As many readers already know, the server test (or server rule) generally says that when a user of an online platform embeds a link that causes a work (usually an image) to appear on the user’s page, this action does not infringe copyright. For more details see posts here, here, and here; but for a long time, the legal precedent has been that by “pointing” to a file on a server where the work is presumed to be legally copied, this action clearly does not infringe the reproduction right. 

But to any ordinary observer, a photograph on a web page would certainly seem to implicate the creator’s display right, no matter how the page editor caused that image to be displayed. And that’s pretty much what Judge Katherine Forrest held in Goldman v. Breitbart et al, also in the SDNY, in February 2018. In that case, several news organizations had embedded Justin Goldman’s photograph by pointing to Twitter’s servers, and Judge Forrest held 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 does not shield them from this result.”

So, although there was no reason for the server rule to have been addressed in regard to Sinclair’s complaint against Mashable, it is reasonable to assume that this defense would not have availed Mashable had it been raised. But, what a strange and messed-up situation we have for creators.

Instagram (and the other platforms) write TOS so broad that they could, technically, sub-license a work for any use without a creator’s permission. In practice, these licenses have, thus far, only applied in cases where the sub-licensee embeds images hosted on the first platform’s servers. But the question remains open (i.e. split among circuits) as to whether the server rule unjustly extinguishes the display right. 

So, you see where I’m going here:  the non-negotiable, labyrinthine contracts that creators must sign in order to use social platforms, weaken their copyrights by means of conduct that has been held to infringe under circumstances barely distinguishable from those in Sinclair’s complaint. Yes, the attorneys and legal experts see the distinction between a contract matter and one of case law under the copyright act. But the bottom line for the creators is that corporate interests are still ripping them off.