Category: Law & Policy

Time for a Fresh Conversation About Privacy and Publicity

“Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual … the right ‘to be let alone.’ Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’”

Those words could be describing the pervasive—and invasive—digital age, but they’re not. They are in fact excerpted from a paper published in the Harvard Law Review in 1890, written by Samuel Warren and Louis Brandeis, nearly 30 years before the Brandeis was appointed to the Supreme Court. Considered a seminal work articulating a right to privacy in the U.S., Warren and Brandeis examine the subject by first theorizing the right as implicated by the fact that unpublished works like personal letters enjoyed a perpetual common-law copyright.

In essence, if the private thoughts, images, or other embodied works are published against the will of the author, this amounts to coerced speech in violation of the First Amendment; and Warren and Brandeis begin with a premise that this principle is coextensive with a right of privacy. They state:

“The principle which protects personal writings and any other productions of the intellect of or the emotions, is the right to privacy, and the law has no new principle to formulate when it extends this protection to the personal appearance, sayings, acts, and to personal relation, domestic or otherwise.”

And in a distinctly victorian observation that seems to anticipate the most exploitative, nip-slip paparazzi out there, they write:

“If you may not reproduce a woman’s face photographically without her consent, how much less should be tolerated the reproduction of her face, her form, and her actions, by graphic descriptions colored to suit a gross and depraved imagination.”

Although the contemporary right of publicity, shaped in the 1950s, owes much to the Warren/Brandeis paper, the pair might be disappointed to see that their sense of “depraved imagination” is amply protected by the right of the free press today. The newsworthiness of public persons is interpreted broadly enough in the U.S. that if Lupita Nyong’o is photographed choosing a brand of toothpaste, the public that would be interested in such minutia has a “right to know.” Ditto anything that might be personally embarrassing, from tripping on the sidewalk, to an argument with a friend, to a wardrobe malfunction. It’s all news. And it has to be said that plenty of serendipitous, photographic works have earned distinction as art (see career of Harry Benson).

On the other hand, if Johnson & Johnson were to seize the opportunity to create an unlicensed print ad with the hypothetical toothpaste photo, this would violate Ms. Nyong’o’s right of publicity, which generally draws the line at commercial exploitation of a person’s name or likeness, and this can include promoting an agenda by a non-profit organization. Again, the First Amendment holds sway. Capture a public person doing almost anything and it’s likely to be protected by free press; but use that public person’s likeness to endorse a product or message, and it’s a First Amendment infringement as coerced speech.

Although Warren and Brandeis look to the copyright protection of unpublished works as a starting point, they further assert that privacy is unavoidably intertwined with the rationale for the protection of intimate “thoughts, emotions, and sensations.” In fact, about a hundred years later, in J.D. Salinger v. Random House (1987), when the Second Circuit held that a biography on Salinger had relied too heavily on the author’s unpublished letters, the court also cited deference to his right of privacy.  And I think we all know how Salinger felt about his privacy.

Your Face Here (whether you like it or not)

Now, we enter a new technological paradigm—privacy and publicity invasions in which a subject (or victim) need not even accidentally participate. As my colleague Sarah Howes, counsel at SAG/AFTRA, describes in her blog on Medium, “There are technologies out there that can insert female actors’ faces into nonconsensual fake porn, and manipulate video and radio content to literally put words in the mouths of anyone, including actors, news broadcasters, and politicians.”

For performers like those represented by SAG/AFTRA, the effectiveness of this technology has led to an effort by these professionals to extend the publicity right beyond their own lifetimes. It was widely reported as technologically cool in 2016 when the late Peter Cushing was resurrected and seamlessly cast in the film Rogue One: A Star Wars Story, but the capacity to accomplish this also suggests that perhaps a deceased performer’s heirs or trusted assigns should have the right to decide under what conditions the actor or actress returns to the screen.

As Howes points out, people can cause a lot of trouble with very dire consequences as these applications become easier to use. Casting movie stars in pornographic films without their consent is one example; but the implications for a society already draining truth like a Sweeny Todd bloodbath are quite staggering. The axiom was  inverted years ago: seeing is no longer believing. But now malicious parties—be they Russian agents with an agenda or internet trolls amusing themselves—will soon add video “evidence” to their arsenal of weaponized bullshit.

When I first looked at the board site 4Chan several years ago, there was one channel where it seemed fairly common for members to upload innocuous snapshots of girls with an open request to the group to make them naked (ah, crowd-sourcing). A few posts down the thread, the request would be fulfilled by someone with Photoshop skills. And while it’s easy to write that off as the pastime of basement-dwelling losers, it’s worth remembering that, as Chris Ruen pointed out in his section about the anti-SOPA campaign in his book Freeloading, the line between basement-dwelling losers and sober internet activists is not exactly a wall of separation.

In fact, more acutely and more recently, The Washington Post reported last week that the chat board 8Chan (essentially 4Chan 2.0) was a major source—if not the source—of false narratives about the Stoneman Douglas shooting, including rumors that the student activists were hired shills of the DNC et al. “The success of this effort would soon illustrate how lies that thrive on raucous online platforms increasingly shape public understanding of major events. As much of the nation mourned, the story concocted on anonymous chat rooms soon burst onto YouTube, Twitter and Facebook, where the theories surged in popularity,” write Craig Timberg and Drew Harwell for the Post.

So apropos Sarah Howes’s observations, we will soon see bogus video “evidence” in the narrative of otherwise serious policy debate, and these assets will be as easily produced by some basement-dwelling loser as the aforementioned fake nudes. If we are not already too far down this rabbit hole, we are certainly still digging in the wrong direction. And among the remedies to protect both the dignity of individuals and the public’s right to know the truth, it may be time to reconsider both privacy and publicity protections in context to technologies that are as new to us as “instantaneous photographs” were to Warren and Brandeis at the turn of the century.

In conclusion, the two attorneys rather remarkably predicted the negative effects of democratizing and mass-producing information without regard to value or editorial scrutiny. I mean they could hardly have imagined Boing Boing when they wrote the following:

“Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, results in the lowering of social standards and of morality. Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance. Easy of comprehension, appealing to that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors, no one can be surprised that it usurps the place of interest in brains capable of other things.”

FOSTA passes House. Internet should be broken any day now.

Is the internet broken yet? I suppose if you’re reading this, it isn’t. And if you’re not reading this, you’re looking at something else. On the internet.

Yesterday, the House passed the hotly-contested FOSTA, which is now the acronym for the anti-sex-trafficking legislation that combines the earlier bill SESTA with various amendments. Eric Goldman has called the progeny a Frankenstein, a “worst of both worlds” bill that will only aggravate what he calls The Moderator’s Dilemma, meaning that internet platforms wanting to avoid potential liability for facilitating sex-trafficking will be stuck with two options: either moderate everything, which is impossible for some sites; or moderate nothing, which will disincentivize sites from acting responsibly, including the moderation of possible sex-trafficking content.

The argument that this legislation won’t help any victims of sex-trafficking, and might even make matters worse, has been echoed by the EFF and other “digital rights” organizations, including Mike Masnick in a recent post-game, Techdirt tirade, lashing out at various players in the industry, including Facebook, for fumbles and other tactical errors that allowed this legislation to succeed. All parties who’ve stood in opposition to these bills have complained about the political reality that nuanced arguments can be tough to present without looking like they’re being soft on sex-traffickers. And I understand how frustrating that can be. It’s almost like trying to discuss the finer points of copyright law while a mob is labeling you a draconian, Luddite, speech-hating, maximalist.

Nearly all parties expect this bill will sail through the Senate and become law, and time will tell whether it provides any form of remedy for the victims of sex-trafficking or, as the critics claim, creates undue liability for innocent site owners while doing nothing to address the underlying problem. But apropos concerns about Goldman’s Moderator’s Dilemma, it is important to remember that the alternative proposal is to maintain the status quo under which the site Backpage was generally held to be immune from both civil and criminal liability, despite sufficient evidence to indicate that a case against its owners should at least go to trial.

In an earlier post on this subject, I labeled the critics of anti-trafficking legislation the NRA of cyber-policy on the grounds that their approach appears strikingly similar when it comes to defending the absoluteness of the liability shields crafted in the late 1990s, at the birth of the commercial internet. In the present climate, it’s hard not to compare this advocacy with the calcified view of the Second Amendment insisted upon by gun-rights activists conflating civil rights with the profit motives of firearms manufacturers. Like the NRA, the EFFs of the world seem determined to accept only a maximalist approach to policy, even where some minimal amendment might do some good.

By “minimal” in this context, I mean that the fundamental safe-harbor mechanism in the Communications Decency Act doesn’t change substantively from what it was before these bills, other than to explicitly state that it was never the intent of Congress to provide immunity for alleged profiteering from sex-trafficking. Moreover, the population of internet enterprises that will even need to take notice of this new law is quite small. One’s business either has to be in some way involved in the sex trade (e.g. host adult ads), which is a limited set; or one has to host a large volume of user-generated content (e.g. YouTube, Facebook), which is also a limited set, but one that can afford compliance as these are some of the wealthiest companies in the world. Meanwhile, the remaining 99.X% of the internet should keep plugging along without feeling any particular urgency in a post-FOSTA environment.

I certainly can’t claim that FOSTA is without flaws—or even that I have the expertise needed to identify exactly what those flaws might be. But as imperfection is a natural characteristic of most legislation, this is supposedly why we have a judiciary tasked with interpreting statutes—and why I say that only time will tell whether this new law will achieve its intended benefits or yield unintended consequences. In either case, consumers who use the internet are unlikely ever to notice any change at all; and if even a few victims of sex-trafficking are actually helped in some way, this seems like an easy choice.

Meanwhile, I remain doubtful that the volume of doomsday rhetoric aimed at the anti-trafficking bills is ultimately about this legislation per se. One reason it seems clear that no provision would ever satisfy the staunchest critics—the EFF will even rail against voluntary measures instituted by industry—is that the slightest adjustment to the safe harbor shield in the CDA implies that perhaps the safe harbor can be amended in the DMCA, too. And that poses an existential threat—not to the internet, of course, just to the maximalists hellbent on defending laws passed in 1996 and ’98 as though they must be the last word for all eternity.

A Tale of Two Links: The Goldman & Playboy Opinions (so far)

“…it was the age of wisdom…” Goldman v. Breitbart et al

An opinion handed down last week by a New York district court marks a substantial victory for rights holders, especially photographers and other visual artists. In November, I wrote about this case and opined that a too-broad application of what’s known as the “server test” effectively strips a class of creators of their exclusive right to publicly display works protected by §106(5) of the Copyright Act.

To recap, Breitbart and nine other news organizations were sued by photographer Justin Goldman for infringement of his copyrighted photograph of athlete Tom Brady. The defendants caused the photograph to be visible on their pages, framed in conjunction with their news articles, by means of embedding code rather than copying the image and placing it on their own servers. Because the use of embed code to “point to the location” of a work on a third-party’s server does not involve the act of copying, defendants argued that they are shielded by the “server test” as applied in Perfect 10 by the Ninth Circuit in 2007.

In essence, the argument stemming from Perfect 10 is that an infringement of the public display right cannot exist when a defendant merely “points” to an image file hosted by a third party. Unsurprisingly, the defendants, with the help of the EFF, have claimed that any other understanding of the “server test” would—follow the bouncing ball—break the internet. (Eventually people are going to notice that the internet keeps not breaking, right?)

Judge Katherine B. Forrest unequivocally disagreed with defendants, citing legislative history, case law, and common sense, articulating several reasons why the display right is agnostic with regard to the means by which the display is made.  From the opinion:

“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.”

Citing the Supreme Court in Aereo (held to violate the companion right of public performance), Forrest notes, “…the principles that undergird the Aereo decision—chief among them that mere technical distinctions invisible to the user should not be the lynchpin on which copyright lies—apply with equal vigor here.” [Emphasis added] Those words go right to the heart of the semantic shell game web platforms play in an effort to get away with unlicensed exploitation of creative works. As stated in my November post on this story, the mere technicality that the user of a work is embedding a link should not be the standard on which this matter turns. In plain words, if a reader visits your web page and perceives pictures, video, or text that you’ve arranged on that page, you’ve created a display of those works. How you did it does not matter.

Judge Forrest agrees, and her opinion is essential if a right like public display is going to mean anything in the digital age because it’s obvious that an image file can sit in one location on one server to which millions of users can theoretically “point” and cause that image to be displayed millions of times. Embedding is within both the statutory and common sense understanding of what it means to display a work.

If the defendants appeal in this case, it will go to the Second Circuit, which has apparently not weighed in on the “server test” to date. Rejecting defendant’s claim that the matter is “settled law,” Judge Forrest looks to other courts and observes that, “Even a quick survey reveals that the case law in this area is somewhat scattered.” She further notes as significant the distinction between Google’s image search tool—at issue in Perfect 10—and the displays made by the news agencies in this case. She states:

“In this Court’s view, these distinctions are critical. In Perfect 10, Google’s search engine provided a service whereby the user navigated from webpage to webpage, with Google’s assistance. This is manifestly not the same as opening up a favorite blog or website to find a full color image awaiting the user, whether he or she asked for it, looked for it, clicked on it, or not.”

“…it was the age of foolishness…” Playboy v. Happy Mutants (Boing Boing)

I also recently posted about Playboy’s suit against Boing Boing, alleging contributory liability for copyright infringement of a large collection of its photographs. Having read the Playboy complaint, I can’t say I was terribly surprised that the California District Court granted the defendant’s motion to dismiss with leave for the plaintiff to amend. The complaint was not very clear, and it opened the door for the EFF to file an amicus brief that explored a litany of speculation as to what Playboy might have been alleging and then enter correspondingly speculative defenses into the record. Thus, I mocked EFF for citing fair use and calling Boing Boing “journalism.”

Although, in response to the motion, the EFF took a small victory lap for “free speech,” this case has nothing to do with free speech and, to my mind, should be much simpler than it appears. It shares a kindred sleight of hand with the Goldman case because “digital rights” groups and web platforms would very much like the act of “linking” to be universally shielded from liability. But the legal issues in these two cases are quite different. In Goldman, the “linking” created a seamless display of a work on the defendant’s web page. In Playboy, the allegation is that Boing Boing both promoted and facilitated infringement that was actually committed by another, unknown, party. In my post on the matter, I accused Boing Boing of engaging in this conduct solely to drive traffic to its site while adding nothing to the user’s experience in the process.

A simple way to understand this case is to substitute Playboy’s images for child pornography. I know it’s an overused example, but that’s because there is no confusion that child porn is unlawful in every sense of the word. If Boing Boing were to write a post that said something like, “Child pornography is a heinous crime that we would never condone, but reviewing these images provides insight into the minds of pedophiles,” and then they linked to said images, guess what would happen. That’s right. They could be held liable for facilitating and promoting access to unlawful material; and I doubt that any court, or many citizens, would be the least bit confused about this because linking to the material is not integral to reporting about it. This is a judgment call that professional journalists make all the time.

Returning to the Playboy complaint, it’s important to keep in mind that infringing content is, by definition, unlawful content—even if it’s not as dramatically unacceptable as child pornography. Thus, the unlicensed cache of Playboy photographs was unlawful content; and Boing Boing’s act of promoting and facilitating access to that content is arguably contributory according to the standards for such conduct as described in the criminal code. We’ll see if the attorneys for Playboy make this any clearer in a revised complaint, and I hope they do because the principle is more important than the infringement of their images.

Beginning in late 2016, a new discussion began about what kind of internet marketplace we want to have—one that truly serves the public good, or one that favors lazy exploitation and monetization of everything that moves. In fact, it’s interesting that these two “linking” tales happen to contrast some legitimate news sites (e.g. Time & Gannett) with a clickbait platform like Boing Boing because for years, content creators have watched the exploitative behaviors of the latter inform the sensibilities of the former. In other words, the web-only industry has taught traditional industry how to not license works like photographs. Hence, these two stories sit squarely in the column of the internet we don’t want in my view; and in the coming months or years, the EFFs of the world may discover that it’s actually possible to defend the goals of truly innovative and useful enterprises without defending every slapdash huckster or corporate exploiter with a URL.