Category: Copyright

Wait, Boing Boing Is Not Clickbait?

So, maybe you heard, or didn’t—or you don’t really care—that Playboy is suing Boing Boing (parent company Happy Mutants, LLC) for contributory copyright infringement. There are a couple of serious points to make about this case, but I want to address the funny part first because it actually informs the not funny parts.

The funny began when I read TorrentFreak’s* article highlighting the fact that Playboy’s complaint calls Boing Boing a clickbait site.  It just so happens that I read the TF post after I read EFF’s motion to dismiss on behalf of Boing Boing, referring to the site’s enterprise as journalism. And that’s pretty funny because the example below is a typical “news article” on Boing Boing. This one happens to be about Andrew McCabe stepping down as Deputy Director of the FBI:

As you see, the “journalist” in this example has typed 69 words conveying the barest information he learned from a real news source; he’s shared a quote from NBC only slightly shorter than his own content; and he’s used a photo from the Reuters News Agency that’s bigger than all the text. In fact, by area, the “article” occupies roughly the same page space as the banner ads while providing the reader with a fraction of the information he could get from a news site—adding neither commentary nor insight nor color to the most rudimentary facts. And for extra funny, Boing Boing asserts a Creative Commons license even though one would be hard-pressed to find any protectable elements in an example like the above—the author having written five sentences so common in vocabulary and structure that I doubt even the site’s limited claim of protection under Creative Commons would hold up.

A sample like this is not journalism by any reasonable definition of the term so much as it is a time-wasting diversion for a reader who might actually want substantive news or commentary about McCabe’s imminent resignation. I know, one man’s meat and all that, but it seems fair to assert that this Boing Boing post, and many just like it, exist solely for the purpose of grabbing traffic to generate ad impressions while providing no distinctive value to the visitor.

But if Boing Boing and friends bristle at the term clickbait to describe this business model, perhaps they’d prefer Wasteful Aggregators of News and Knowledge. Y’know, WANKs. For practical purposes, let’s define a WANK as any site that functions as a tollbooth—a needless step between, for instance, a social media feed and a robust source of content like a news site. Rather than operate as creators of original content, WANKs harvest Pavlovian responses to headlines in order to funnel traffic through their tollbooths, generating revenue in the form of ad impressions. Sorta, like…clickbait.

A Quick Note on Contributory Infringement

Simply put, liability for contributory infringement exists when a party knowingly induces or encourages infringement, with or without prospective financial gain. In this particular case, I would assert that profiting from traffic is the only reason for the existence of WANKs like Boing Boing; but even if we were to broaden the meaning of journalism to encompass these sites, this does not change the legal analysis because the most serious journalists in the world can still infringe a copyright or be liable for contributory infringement—even while producing far more original work than a typical Boing Boing post.

Playboy Entertainment v. Happy Mutants

So what happened with Playboy was that somebody uploaded every playmate centerfold dating back to April 1960 (477 images) to the site Imgur. And upon discovery of this trove of unlicensed photos, Boing Boing’s intrepid news team produced one of its Pulitzer-melting articles with a headline cleverly titled “Every Playboy Playmate Centerfold Ever.” At issue is the fact that the article contained two links—one to the Imgur pages, the other to a YouTube video, made by someone who’d arranged the photos into a slide show. But lest you think this was just a cheap opportunity to leverage a third-party infringement just to drive traffic, note that the reporter did stay up late to write the following:

“Some wonderful person uploaded scans of every Playboy
Playmate centerfold to imgur. It’s an amazing collection,
whether your interests are prurient or lofty. Kind of amazing to
see how our standards of hotness, and the art of commercial
erotic photography, have changed over time.”

The EFF calls the publication of these words “transformative,” asserting that even if there were grounds for contributory infringement, which they insist are not present, this perceptive insight, with its melodic repetition of the word amazing, serves as the cornerstone of a fair use defense under the first factor. I know it seems like I’m still on the funny part, but this is the serious legal stuff and is central to Boing Boing’s defense that all they did was link to infringing content while commenting on it “as journalists.”

Now, my opinion of Boing Boing’s value doesn’t technically matter. And the opinion of a court should not matter either. We certainly do not want the courts or any other branch of government deciding what is and is not journalism (especially these days). And it is also true that the prospect of incurring liability simply by linking to content can imply potential hazards, though certainly not the existential threat to the internet that EFF and its colleagues seem to proclaim with relentless consistency.

At the same time, it is not reasonable for WANKs, or any other platform, to avoid liability for intentionally exploiting third-party infringement merely by means of attaching a glib comment and calling it “news reporting” protected by fair use. By EFF’s standards, I could post unlicensed photos on this blog with captions that say little more than, “This one’s my favorite!” and call it “transformative.” And that just ain’t right.

Again, even if we were generous enough to consider Boing Boing’s 44-word “standards of hotness” post a form of journalism, it still should not pass as “transformative” under the fair use test because the post does not actually use the original work to create a new expression by adding something new. Technically, the post could stand alone without the links. It would still be lame, but it wouldn’t be infringing. As it is, the central communication of the post is, “Dude, you should look at these photos, and here are the links.” Which sounds kinda contributory.

Of course, the real key to Boing Boing’s liability has less to do with the text in the post and more to do with the headline. When the unambiguous words Every Playboy Playmate Centerfold Ever appeared in social media feeds, the goal was to trigger the aforementioned Pavlovian response whereby users click the link expecting to see exactly what the headline promises. The brief interlude when the user might read the diminutive post does not serve to shield the fact that, as indicated by the headline, Boing Boing advertised, and then provided access to, infringing content for the sole purpose of drawing traffic to its pages.

This conduct should be more than sufficient to allege contributory infringement and allow this case to proceed. Meanwhile, I actually agree with Boing Boing’s defenders that this case gets to the heart of the internet—namely the heart of what sucks about the internet, which is populated by too many opportunistic platforms that do very little other than manipulate users and exploit work somebody else has produced. If WANKs like Boing Boing cannot operate without blanket immunity from responsibility—a dysfunctional policy that real journalists have never enjoyed—then the enterprise should fail. What society would lose in that bargain is impossible to imagine.

*POST CORRECTED:  As first published, I called the TF post “defensive,” a reading into the article based on its headline, the editorial leanings of that site, and the anti-copyright views expressed by many of its readers’ comments.  Upon hearing from TF and further review, it’s fair to say that Andy’s post is much more neutral than I first described.

Why Women Should Also Lead the Anti-Piracy Effort

In past articles I’ve suggested that anti-piracy should be a form of activism practiced by anyone who stands up for women’s rights. And perhaps now that empowerment of women is the social tidal wave of the season, this proposal will get some traction. There is the ugly truth that some pirate sites serve as verticals for broader organized crime activity, including human trafficking; and there’s also the problem that pirate-site deployment of malware like RATs fosters harassment and exploitation of women and girls. So, it seems logical to me that if one’s environmental consciousness would avoid adding one more plastic bottle to the ocean, then one’s feminist consciousness would likewise avoid enriching pirate sites, which may support these forms of exploitation.

But there’s another point I’d make, and one that may be more obvious than the links between piracy and exploitation. It occurred to me the other day when I read in Variety that Rachel Morrison is the first woman Director of Photography to be nominated for an Academy Award for her work on the indie film Mudbound. Coincidentally, this was just a few hours after I read an editorial by that film’s producer Cassian Elewes titled How Google is Killing the Independent Movie Industry. Elwes focuses on the renegotiation of NAFTA and how the safe harbor provisions in the 1998 DMCA have had the unintended consequence of expanding piracy, which most acutely harms independent filmmakers.

The feminist groundswell generally referred to as the #MeToo movement not only began in the epicenter of the motion picture industry with revelations about Harvey Weinstein, but the industry as a whole was long overdue for correcting its “boys club” problem separate from issues of harassment and assault. In the days before sound was added to motion pictures, women were among the most innovative artists of the budding industry—as writers, directors, editors, cinematographers, studio heads, and even operators of big 35mm, hand-cranked cameras. Sound made production more expensive, leading to more substantial capital investment, which transformed movie-making into a “real job” that men wanted. Thus, the substantial contributions of Alice Guy Blaché and her contemporaries to the new language of cinema are little known by anyone other than students of film history.

Now that the male/female pendulum is finally swinging back toward a more balanced position, one of the best choices fans can make to keep that momentum, to support a craftsperson like Rachel Morrison—and the 1,000 young women who want to follow in her footsteps—is to stop pirating movies. As many have tried to explain, that whole “screw the fat-cat movie moguls” narrative people still cite to justify piracy is a complete myth. The so-called “fat cats” will be fine much longer than the independents, where the margins are lower and the effect of piracy can easily make or break the financial success of a film and prospective investment in the next one. Elwes writes …

“…just during its theatrical run, Dallas Buyers Club suffered roughly 22 million piracy transactions – more than three times the number of legitimate transactions. If just 5 percent of those pirated transactions had been paid tickets, downloads, or rentals, the film would have earned at least an additional $4.4 million (at a low rental fee of $3.99). That kind of money is life or death for an independent film and the filmmakers who sacrificed everything to get their vision onscreen.”

I’ll add that anyone who justifies piracy based on their idea that filmmakers are just those tux-and-gown folks swarmed by paparazzi on the red carpet, should spend a week with a cinematographer and her crew of camera assistants. It’ll be a string of 15-hour days, mostly on your feet, moving very quickly, communicating in a technological patois you won’t understand, and all in the service of key creative decisions worked out weeks or months earlier between the director and the production designer.

It’s fairly common when a film is nominated for a Cinematography Oscar that fans will say, “Yeah, that film is beautiful.” But beauty isn’t necessarily the DP’s objective; it’s actually something much more difficult and subtle than that. It’s making a thousand technical and creative choices, sometimes on the fly, that serve the story in ways the viewer doesn’t consciously observe. Great cinematography is hard, both mentally and physically; and anyone who thinks digital has made the process easier or cheaper only believes this because he doesn’t know how the job actually gets done.

Likewise, anyone who thinks that “pirating the studios into oblivion” is somehow helpful to independents and careers like Morrison’s, don’t know what they’re talking about. The worlds of studio and indie are codependent in numerous ways I won’t repeat here; but just a glance at Morrison’s IMDB page reveals a fairly typical narrative—over 30 credits in the Camera or Electric Department (i.e. learning her craft) beginning in 1999; then cinematographer credits on 43 independent films, TV shows, and documentaries; then her first big, Hollywood movie, Black Panther, releasing this year. But her future career will continue to include many independent films because most films made are indies while the “evil” studios function primarily as distributors.

So, anyone who’s glad to finally see a woman nominated for a Cinematography Oscar—because it really is a long time coming—and would like to see more women in that line-up in the future, can best support this trend by supporting the films themselves with tickets, streaming rentals, paid downloads, etc. Or you can keep supporting some anonymous guys running pirate sites and are at this moment criminally exploiting Morrison’s work on Mudbound for their own profit. See the problem?

 

Photo:  Photoplay magazine (1916). Camera operator, or “crank,” Margery Ordway.  See more information at Library of Congress.

Ideologues Seek Revision of Copyright Law Without Legislative Process

One of the reasons someone like me mucks about in copyright law is that all law is an exercise in language.  Especially because English comprises more words and, therefore, more shades of meaning than any language in the world, the logophile who enjoys a good fuss, bother, muse, agitation, or dither over deployment of le mot juste shares a kinship with the legislator, judge, or attorney whose choice of words can have profound consequences for generations of people.

If law can be described as an attempt to shape civilization by means of imperfect language, how could the subject not be a flame to the word-geek’s moth?  And since the heart of copyright law is expression itself, it is naturally a region where one can spend considerable time exploring avenues, boulevards, and dark alleys on a journey of semantic discovery.  On the other hand, the linguistic ambiguity that is the word lover’s playground can also be a source of frustration in the application of law, which is why context framed by precedent plays such a critical role.

But in the United States, where most laws are state laws, a broad framework of precedent is often impossible in certain specialities.  No single attorney or judge can, for example, track the commonalities among all the tort law cases decided in the fifty states in order to find some consensus on the meaning of fundamental and evolving principles.  In answer to this, a century-old organization called the American Law Institute publishes what are known as Restatements of Law, primarily for the purpose of consolidating and synthesizing the disparate body of common law into guidelines that may be cited in court almost as though they were statutory, or black-letter, law.

But in a move that would normally go unnoticed by anyone outside the legal profession, a small group of copyright skeptics, initially led by Berkeley Law Professor Pamela Samuelson, embarked on a Restatement project for copyright law.  This is unprecedented.  ALI Restatements have never been written for comprehensive federal laws like copyright because these are already statutory, or black-letter, laws.  Congress writes the statutes, the judiciary interprets them, and attorneys make their arguments; but everybody’s working from the same statutes and a much more narrow body of case law than common law entails.   Hence, this request for a Restatement of copyright law represents an end-run around Congress—an effort to reshape the Copyright Act without a legislative process.

The ALI Restatement process is methodical, iterative, and ultimately requires ratification by vote of the entire membership.  Once a Restatement is issued—in fact, even before it is fully ratified and published—segments can be cited in court, so the institution does not take the process lightly.  Drafts are written by a small group of attorneys called Reporters, and other ALI members are invited to submit comments as Advisers. The Reporters are, however, not required to defer to any of the Advisers; and a key concern among rights holders about this project is that its five Reporters are known to be highly critical of copyright with particular bias toward the anti-copyright agenda of internet companies.  Most prominently, lead Reporter Christopher Sprigman serves as counsel to Spotify, which at least raises the question of a conflict of interest.

Because this project is unprecedented in the history of ALI, a response last week from music attorney Dina LaPolt pulls no punches, asserting that the institution is at risk of undermining its well-earned credibility by exceeding its tradition of filling in gaps in the law and instead rewriting law that is well-established.  “The problem is that ALI has been hijacked by a handful of agenda-driven academics, who are drafting the text of the ALI treatise in a way that reflects their subjective view of copyright law, not the objective summary they were directed to create. Some of these academics have in the past tried to lobby Congress for changes that would weaken copyright protection — unsuccessfully. And for reasons I cannot understand, ALI has decided to be complicit in a process that will harm creators and likely benefit technology giants,” LaPolt writes in Billboard.  In the same publication, Robert Levine cites a letter obtained by the magazine in which acting Register of Copyrights Karyn Temple Claggett calls the prospective Restatement “a pseudo version of the Copyright Act.”

Looking at this as an outsider, it is hard to imagine how this Restatement process, originally created to distill clarity out of the dynamic mosaic of common law, would not, at best, foster new areas of confusion in copyright.  Presumably, the Reporters imagine rewriting copyright law as they believe it should be—and this is already an affront to the legislative process—but it’s not as though the considerable body of statutory and case law copyright knowledge will simply evaporate. Restatements clearly serve an invaluable purpose where no statute or collective understanding exists; but where well-founded and longstanding statutory knowledge is already present, confusion seems inevitable.

Copyright law contains statutory language dating back to the start of the nation, and its stately growth in complexity is a cumulative and fairly linear narrative that, not by coincidence, parallels the narrative of technological innovation. Nevertheless, language remains imperfect, subject to interpretation and persuasive argument; so it seems to this non-attorney that adding what might be described as a holographic copyright law (to build on Claggett’s comment) that would sit on top of well-established precedent would only inject greater uncertainty in the courts.

These Restatement projects take years.  This one actually began in 2015 and is only being discussed in a limited way in public fora as of last week.  And while it is hard to say exactly where this process will go—it really is inside baseball for the legal profession—rights holders should not lose sight of the fact that the forces opposed to copyright’s core principles, many of which are direct beneficiaries of the internet industry’s assault on creators, are clearly willing to achieve their ends by any means necessary.  Isn’t it curious that the parties who so vehemently insist that copyright is incompatible with democracy are rather quick to throw democracy under the bus in order to get what they want?

Photo by designer491