Category: Law & Policy

Masnick Calls CASE a Big Media Bill?

From the Techdirt Sycophants Department

In his post of May 28, Mike Masnick dutifully opened his hymnal and joined the chorus in a rendition of “How to Criticize the CASE Act,” lending his bel canto to the refrain that the new law would create a “copyright trolling court.”  As explained here and here, this is an inscrutable criticism because the Copyright Claims Board will actually be a lousy venue for copyright trolls—principally because it is a voluntary resolution option.  But if you don’t believe me about that, Mike’s further implication that CASE is a Big Media proposal and the product of “soft corruption,” is so transparently illogical that you may dismiss the allegation by applying a modicum of common sense.

Wanting readers to believe he speaks truth to power, Mike employs a little misdirection with the following innuendo about two of the bill’s lead sponsors:

“We should note, that the House bill is sponsored by Rep. Hakeem Jeffries, along with Jerry Nadler. You may recall that those two Congressman were recently seen hosting a giant $5k per ticket fundraiser at the Recording Industry’s biggest party of the year, the Grammys. And, right afterwards, they suddenly introduce a bill that will help enable more copyright trolling? Welcome to the world of soft corruption.”

Yes, that’s what happened.  The CASE Act was drafted on the back of a napkin at the Grammys party. (Stand by for Mike to accuse me of straw man because he did not literally say this.)

In Reality Land, I suppose we can ignore the fact that a small claim copyright proposal has been floating around Capitol Hill longer than Rep. Jeffries has been a Member of Congress—and, for that matter, longer than the bill’s other main sponsor Rep. Doug Collins of Georgia.  But I guess Collins wasn’t at the Grammys and so doesn’t fit Masnick’s conspiratorial narrative?  We might also ignore the fact that CASE has solid bi-partisan support, even from Silicon Valley Rep. Zoe Lofgren, and that the only effective (albeit unreasonable) opposition in the last two or so years has come from the Internet Association and the Computer and Communications Industry Association.  But what readers should not ignore is their own basic ability to reason, which ought to sound something like this …

BIG MEDIA COMPANIES DON’T GIVE A DAMN ABOUT COPYRIGHT SMALL CLAIMS.

Mike’s implication that Jeffries and Nadler partied with the RIAA and “suddenly” introduced a bill is just wrong as a matter of public record, but even if nobody wants to bother looking that up, you might then ask what possible interest major record labels or movie studios or any other Big Media companies have in creating a voluntary, small-claim, alternative-dispute provision for copyright infringement?  As Mike himself is very fond of reminding people, these are powerful corporate entities with high-octane attorneys on staff.  There is nothing in the CASE Act for these companies.

I know it’s hard to fathom, but the CASE Act is a rare example of bi-partisan legislation designed for regular people—middle-class creators who have almost no affordable path to remedy unlicensed uses of their works.  And thanks in no small part to tech-evangelists like Techdirt, online infringement is both rampant and misconceived as acceptable, even by commercial users who ought to know better. 

Mike should go back through all the articles and public statements he’s ever made on the theme that he “supports creators” but wants “balanced copyright” and feel obliged to eat every one of those words.  CASE is about balancing copyright.  It proposes to level the playing field for little guys who are getting clobbered by the policies and practices of the tech giants, which only makes Mike’s implication that it’s a Big Media bill all the more offensive.  I know attorneys who think CASE might not work, which is at least thoughtful criticism based on its actual mechanisms, but misrepresenting the Copyright Claims Board as a processing center for invalid damage awards is just mean-spirited considering the kind of people it is designed to help.

At this point, it would be grand if Mike and the legal pundits who write the songbooks from which he so often sings would just admit they don’t like copyright and will vigorously oppose any kind of enforcement no matter what.  That would at least be honest.  Still obnoxious, but not patently absurd.

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.