Category: Copyright

Important Win for Rights Holders in TVEyes v. Fox

In Monday’s post (and quite a few others) I stated that certain parties have worked very hard to distort the character of the fair use doctrine until it no longer has any boundaries or meaning, and simply nullifies copyright’s protections. For the last two years, every time I’ve made that accusation, the case foremost in mind has been TVEyes v. Fox News. But yesterday, on Day Two of Fair Use Week, the Second Circuit Court of Appeals handed down an opinion that draws some freshly sharp lines around the traditional limits of fair use in an age when tech ventures consistently try to describe mass copyright infringement as innovation. Rights holders of every flavor should feel relieved by this decision, especially as it upholds the conditional and narrow finding of fair use in the Google Books case.

The court rejected all  the defenses presented by TVEyes, but the most significant part of this story involves the relatively novel doctrine of “transformativeness,” which is weighed when considering the first of the four fair use factors, and has split into two main interpretations. The first interpretation, applied in Campbell (1994), describes the transformation of one expressive work into a new expressive work (i.e. the kind of fair use most creators care about). The second interpretation, most prominently applied in Google Books (2016), describes a much more broad transformation of a useful technology, which necessitates copying protected works in order to function. (See today’s Copyhype post on transformativeness.)

The latter interpretation has made rights holders rather anxious as several tech companies have tried to assert that the “transformative” doctrine—and especially the holding in Google Books—provides a rationale for just about any new tech venture to commit mass infringement on the grounds that the novelty of the enterprise alone can be described as “transformative.” TVEyes, which stored, organized, and made available nearly all of Fox’s programming to its institutional and corporate customers (see a more detailed discussion here), relied substantially on this interpretation of “transformativeness” in its defense. But yesterday, the same court that wrote the opinion in Google Books made a clear distinction between that case and this one, holding that the TVEyes model is not a fair use.

The majority of the panel held that TVEyes’s “Watch” function, which enabled viewing whole programs in 10-minute segments, was “slightly transformative,” but so modest as to be outweighed by the rest of the fair use analysis. In particular, the third and fourth factors were short work for the court because TVEyes made nearly all of Fox’s content available (weighing against them under the third factor) and “usurped a market that properly belongs to the copyright-holder” (weighing against them under the fourth factor) by creating a means of distribution that a creator has the exclusive right to develop for itself.

Interestingly, Judge Lewis A. Kaplan wrote a concurring opinion, dissenting solely on the majority’s analysis of “transformativeness,” holding that the consideration itself was not necessary; that a finding of “slightly transformative” adds further ambiguity to an already ambiguous doctrine; and that, if he were to consider the matter, he sees no evidence that TVEyes is the least bit “transformative” under a fair use analysis. In fact, Kaplan’s opinion may prove especially significant in drawing a distinction between Google Books and other tech ventures hoping to exploit the ambiguity of “transformativeness.” Kaplan writes…

“The facts here…differ from Google Books quite substantially. The snippet function considered there delivered much less copyrighted content than the Watch function at issue here. Nevertheless, we there concluded that the snippet function only ‘adds’ to the transformative purpose of the Search function. Our conclusion with respect to the Google Books snippet feature therefore does not control the proper characterization of the Watch function at issue here. Moreover, we cautioned in Google Books that the case ‘test[ed] the boundaries of fair use.’”

TVEyes may appeal this ruling since it does put an end to their business model; but it’s hard to imagine the Supreme Court granting cert, unless it were exclusively to further clarify the “transformativeness” doctrine. There doesn’t appear to be anything else for the Court to resolve. And given the rationales applied by the Second Circuit here—especially drawing such clear distinctions between its own precedent opinion and this one—it seems like a big stretch for TVEyes to expect an appeal to go their way, even if the Supreme Court did hear the case.

Rights holders should be very pleased with this outcome, as should anyone who believes that legal systems have contours. Fair use is an important exception to copyright’s exclusive protections. But it is simply common-sense to conclude that every tech company that develops another method for exploiting someone else’s work—TVEyes, ReDigi, VidAngel, etc.—cannot call itself “transformative” and get away with it. One can show great ingenuity in hacking, embezzlement, or counterfeiting, too, but that doesn’t make these enterprises legal. Thankfully, the Second Circuit agrees.

Happy Idea/Expression Dichotomy Week!

Today marks the start of the fifth annual Fair Use Week when library institutions, academics, and several anti-copyright organizations disseminate public-facing messages—from useful to whimsical—on the virtues of the fair use doctrine in copyright law. There is, of course, nothing wrong with highlighting the utility of fair use per se, but the mere fact that these parties devote so much energy to a week of fair use celebration is more than a little propagandist in spirit.

For one thing, several of the organizations and individuals waving fair use banners have long been engaged in an effort to expand digital-age fair use until, like a river breaching its levees, it drowns copyright protections out of existence. Second, for the time being, fair use remains a relatively arcane legal defense that may be presented in a copyright litigation—one that is best understood by reviewing precedent case law. As such, the number of creators the doctrine actually touches is quite small even though its most ardent celebrants would say that fair use is so abundantly generative of new works—scholarship, reportage, parody, etc.—that we are all beneficiaries of its application.

And that narrative is true up to a point. Fair use does protect and foster many forms of expression that are essential in a diverse and democratic society. Oddly enough, though, we never celebrate the less melodious-sounding Idea/Expression Dichotomy Week even though it is probably a more important and more generative principle. The idea/expression dichotomy (or distinction) affirms that copyright’s exclusive protections do not extend to ideas but only to original expressions of ideas. And although many critics strive to portray copyright as a system for monopolizing ideas by a privileged few, this is not a sentiment you’ll hear from many actual creators. And that’s not because fair use enables authors to copy from one another in great abundance, but because the idea/expression dichotomy enables creators to work without giving much thought to the prospect of infringement in the first place.

When copyright skeptics overemphasize the need for authors to build upon precedent works (a fact no creator denies), they often muddy fair use with idea/expression, either naively or by design. In practical terms, there are fewer incidents when an author needs to explicitly copy some portion of an existing work than there are moments when the author simply embarks on a project that may be broadly inspired by some precedent work. So, the budding singer/songwriter, for example, is free to use all the raw elements that comprise her favorite punk songs to produce her own expression we recognize as punk; and with very few exceptions, her album will sit comfortably next to The Ramones, The Dead Kennedys, and The Clash without inviting conflict. And fair use has nothing to do with it.

Without wandering too deep into the dense weeds of early IP law, suffice to say the idea/expression dichotomy was shaped into its present doctrinal form by a handful of cases that challenged the courts to identify exactly what copyright protects, including the boundaries between copyright and patent, with the latter more properly associated with protecting ideas. Often, 19th-century cases were as much an exercise in evolving semantics as they were in legal theory. For instance, prior to 1874, a copyrightable work could have an “author, inventor, or designer” until Congress amended the statute to clarify that the word inventor in this context only referred to the printmaking field, where the now-disused term of art once described the original artist/designer in that process.

Absent that clarification, we can see how a word like inventor can blur the line between copyright and patent, especially when it’s the exact word in the Constitution’s IP clause that describes the type of creators who are entitled to patent protections. The distinction between idea and expression was first substantially articulated in the United States in the case Baker v. Selden, decided by the Supreme Court, also in 1874. The key decision in Baker held that while Charles Selden’s book about his system of bookkeeping (an expression) may properly be the subject of copyright, the bookkeeping system itself (an idea) is not a subject of copyright. It turned out Selden’s system wasn’t granted a patent either, but that’s another story rich in tedious detail.

As core concepts, both idea/expression and fair use have long pedigrees dating back to English copyright law, to which American courts turned for guidance in the early 19th century, since we didn’t have any case history of our own. As scholar Matthew Sag describes in his 2011 paper The Prehistory of Fair Use, the fundamental principles of American fair use doctrine can be found in key copyright cases in England as early as 1741. But Sag further notes that his examination of pre-American fair use reveals a broader understanding of authors’ rights than many contemporary critics tend to ascribe to premodern copyright. In other words, the politicized narrative that copyright protections have continued to balloon out of control while fair uses are quashed is neither evident in the contemporary record nor necessarily well-founded in the historic one.

As new technologies transformed the nature of creative work in the 20th century—enabling so many professional authors that the United States became the world’s largest producer—it was inevitable that so much abundance would have to include countless works that are relatively similar to one another. And the limitation on copyright that most often supports this dense, rich anthology is the idea/expression dichotomy—not fair use.

Because the fair use exception can be tricky—even at times for attorneys and courts—it remains an ideal subject for sowing misunderstanding in public fora, and this includes exaggerating its role in fostering new expressions. But the simple truth is that most authors produce most of their work without giving precedent works, or copyright law, much consideration at all. In fact, it would be stiflingly daunting if they tried. So, there’s nothing wrong with celebrating Fair Use Week, but it is almost certainly Idea/Expression Dichotomy doing most of the heavy lifting throughout every creative year.

Photo by alphaspirit

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.