Category: Copyright

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. 

Public Knowledge wants to solve the misinformation problem? That’s adorable.

On Tuesday, Meredith Filak Rose of Public Knowledge posted a blog suggesting that a solution to rampant misinformation is to “bring libraries online.” Not surprisingly, she identifies copyright law as the barrier currently preventing access to quality information that could otherwise help solve the problem …

“High-quality, vetted, peer-reviewed secondary sources are, unfortunately, increasingly hard to come by, online or off. Scientific and medical research is frequently locked behind paywalls and in expensive journals; legal documents are stuck in the pay-per-page hell that is the PACER filing system; and digital-only information can be erased, placing it out of public reach for good (absent some industrious archivists).”

Really?  We’re just a few peer-reviewed papers away from addressing the social cancer of misinformation?  Back to that in a minute.  Because first, there’s a spit-take that needs cleaning up after reading that Public Knowledge??? Is weighing in on misinformation???  This is an organization that has recklessly spread nonsense of Augean proportions about copyright law.  See posts here, here, here, here, here, here, and here; or just read my last post citing PK’s Shiva Stella just plain making stuff up about the CASE Act.

The funny thing is that Rose does a pretty decent job of summing up how misinformation can be effectively deployed online, but her description could easily be the Public Knowledge Primer for Writing About Copyright Law:

Misinformation exploits this basic fact of human nature — that no one can be an expert in everything — by meeting people where they naturally are, and filling in the gaps in their knowledge with assertions that seem “plausible enough.” Sometimes, these assertions are misleading, false, or flatly self-serving.  In aggregate, these gap-fillers add up to construct a totally alternate reality whose politics, science, law, and history bear only a passing resemblance to our own.

Right. Kinda like when Stella alluded to the “secret entertainment industry” behind the development of the CASE legislation? Or when the organization claimed in August of 2018 that the “entertainment industry” was trying to sneak a copyright term extension into the NAFTA renegotiations? Those are indeed plausible tweets for anyone who is not expert in copyright law to believe—especially because it feeds what Alice Marwick calls as a “deep story” that behind every copyright policy initiative is a Hollywood bagman.  

Having said all that, Meredith Rose’s article does not say anything categorically false. It is a sincere editorial whose main flaw is that it is sincerely naïve.  “…in the absence of accessible, high-quality, primary source information, it’s next to impossible to convince people that what they’ve been told isn’t true,” she writes.  

Yeah. That psychological human frailty is not going to be cured by putting even more information online, regardless of how “good” it may be, or how copyright figures in the equation.  On the contrary, more information is exactly why we’re wandering in a landscape of free-range ignorance in the first place.  It’s why anti-vaxxers have grown in numbers and brought back the measles; it’s why climate-change deniers get to hold public office and reject scientific data; it’s why even the President of the United States can make public statements that are demonstrably false and tens of millions of citizens don’t give a damn.  There is more than sufficient freely-available, factual information online right now, all produced by professionals and experts on every subject under the sun, and yet this bounty has not mitigated the steady encroachment of flat-earth lunacy into the mainstream conversation.

Speaking as someone schooled in what we might call traditional liberal academia, I believe Rose reiterates a classically liberal, academic fallacy, which assumes that if just enough horses are led to just enough water, then reason based on empirical evidence will prevail over ignorance.  That’s not even true among the smartest horses who choose to drink. Humans tend to make decisions based on emotion more than information, and it is axiomatic that truthis in the eye of the beholder.

But if galloping bullshit is the disease, the catalyst causing it to spread is not copyright law keeping content off the internet, but the nature of the internet platforms themselves.  By democratizing information with a billion soapboxes it was inevitable that this would foster bespoke realities occupied by warrens of subcultures that inoculate themselves against counter-narratives (i.e. facts) with an assortment of talismanic phrases used to dismiss the peer-reviewed scientist, journalist, doctor, et al, as part of a conspiracy who “don’t want us to know the truth.” 

And let us not forget the extent to which the promotion of bullshit is big business.  Sure Cambridge Analytica made headlines.  But what about the friendly-looking spin-off from Open Media called New/Mode with its happy icons and upbeat mission statements about community and transparency? The cognitive dissonance needed to square those values with the deployment of “one-click calling” and “tweetstorms” is at the heart of the problem Rose and her friends at Public Knowledge are not just overlooking, but helping to foster.  

Social-media activism is designed to trigger the most Pavlovian of emotional responses and overwhelm reasoned debate with numbers.  Messages are simple and truth is rare, regardless of source or agenda. Reason cannot defeat such tactics.  We could upload all the well-founded science ever written, and it would barely be noticed in sea of hashtag nonsense many people would prefer to believe.  Public Knowledge knows this quite well, having availed itself of these tools and/or celebrated the efficacy of spreading misinformation—at least about copyright law. 

If Meredith Rose and her colleagues believe there are unreasonable copyright barriers to certain material, they should make that case on those merits alone and let others respond accordingly. Framing the topic as a broad solution to the effects of toxic and misleading content is too ambitious an overstatement for anybody to make, and far beyond the credibility of Public Knowledge to assert any authority.

Photo by cynoclub

CASE Act Introduced. Critics Spin Tales.

Last week, bills to create a new, small-claim copyright process were introduced in both the House and Senate.  Generally referred to by the House name the CASE Act, the proposed changes to Title 17 will establish a Copyright Claims Board (CCB) at the U.S. Copyright Office with the purpose of offering rights holders a path to remedy infringements without the high cost of federal litigation.  Both claimants and respondents may avail themselves of the tribunal procedures with or without counsel; and claimants may also initiate proceedings for alleged infringement of works that are not yet registered, although registration must be obtained prior to the Copyright Claims Board considering a proceeding “active.”

Organizations like Public Knowledge and the Electronic Frontier Foundation reveal their true colors when they criticize CASE, not least because the topic itself is just barely within the purview of either organization’s mission.  It is true that a lot of garden-variety infringement occurs online and that this is a significant motivation for creating a small-claim option, but that does not make the proposal a “digital rights” issue per se.  There is no “right” to infringe copyright on the internet, so it would be refreshingly honest if EFF and PK would simply declare their open hostility to any form of copyright enforcement and stop paying lip-service to “finding better remedies” …

“We acknowledge the very real problems faced by many artists trying to enforce their copyrights online, and are hopeful that collaboration among all stakeholders can create a meaningful solution. However, the current CASE Act is not it.”  – Public Knowledge –

That is a multi-layered lie.  Despite many opportunities to weigh in over the many years CASE has been in development, Public Knowledge declined to do so.  It is not a good-faith negotiator representing stakeholders, and it is frankly hard to imagine who those stakeholders might be other than the staff of Public Knowledge itself.  After all, opposing policy on shaky grounds is usually good for a few fund-raising dollars, which is why my favorite detail in their little missive is this one:  

“The Act further entrenches an already-toxic culture of secrecy within major entertainment industries….”  

I would love to know in what alternate Marvel Universe does anyone think the multi-billion-dollar “entertainment industry” has thrown its “secret” muscle behind a copyright small-claim provision.  The maximum penalty that can be awarded by the CCB would not cover the legal fees for discovery in the kind of cases typically litigated by the entertainment industry.  This bill has nothing to do with that world.  Quite the opposite.  It was proposed so that copyright owners who are not Disney, Sony, and Netflix can restore some meaning to their rights.

If nothing else, I’m personally sick of pavlovian politics, whether it’s a racist dog whistle or an overt use of buzzwords invoked with the aim of misinforming the public about an issue.  Public Knowledge’s attempt to scare people by falsely alleging that this bill is the handiwork of Hollywood lobbyists lurking in the dark corridors of Congress is a classic example of why those who claim to defend the “information age” are so often the best examples of why we should not.  

Meanwhile, any party who genuinely wants a “meaningful solution” to rampant, online copyright infringement should actually applaud the CASE proposal as a mechanism that directly engages rights holders and alleged infringers in a process that will educate both parties about the exclusive rights and limitations of copyright. 

While PK and EFF will continue to try to paint CASE as a damage-award processing unit for claimants alone, nothing could be further from the truth, starting with the fact that although pursuing a claim via the CCB will be much easier than traditional litigation, it will still be a moderate pain in the ass.  There is enough work that needs to be done—either by the copyright owner or an attorney—that no independent rights holder is going to devote time or resources to pursue a nothing claim. 

To the contrary, the most consistent complaints come from photographers whose images are used for commercial purposes without license; and many of these are the archetypal cases worth pursuing in a small-claim venue.  As described in this post, when photographer Jenna Close testified before the House Judiciary Committee in support of CASE, she identified eighteen unlicensed, commercial uses of her works being made at that time.  Depending on the nature of the uses and the licensing fee for each, that could be a photographer’s rent or insurance for a year.    

At the same time, the CCB procedure will also be beneficial for respondents (defendants), including those who infringe works either naively or willfully.  As discussed in this post about Brammer v. Violent Hues, that case looked to me like an ideal circumstance in which both parties would have benefitted by opting for the CCB rather than federal litigation.*  The conclusion would have been the same, but the penalty the infringer would have paid would very likely have been far less than the grand total he now owes after pursuing an ill-advised fair use defense all the way to the appellate court. 

CASE Is NOT a Copyright Troll’s Playground

“The CASE Act would give copyright trolls a faster, cheaper way of coercing Internet users to fork over cash “settlements,” bypassing the safeguards against abuse that federal judges have labored to create.”  – EFF, April 2018 –

That’s more or less the headline EFF et al have been using—alleging that CASE is a gift to copyright trolls.  Trolls are litigators who use false or otherwise improper claims to frighten accused infringers into settling threatened litigation.  They are a problem (albeit often exaggerated), and frankly the internet platforms have provided them with hunting grounds that nobody at EFF or PK is suggesting need to be shut down.  Meanwhile, the proposed Copyright Claims Board will be a terrible venue for copyright trolls.

For one thing, the CASE Act contains about page and half of anti-troll statutes—a safeguard that does not exist in any Article III court.  Parties bringing a claim for “harassing or other improper purpose, or without a reasonable basis in law or fact,” may be subject to a $5,000 penalty and/or barred from using the CCB for a year.  In addition to those barriers, the damages caps, along with the Register’s discretion to limit the number of cases a single party may bring in particular time-period make the small-claim tribunal a money-losing proposition for the would-be troll.  

Moreover, as proponents involved with the development of this bill have stated repeatedly, it is very hard to troll any party through a procedure that is VOLUNTARY.  The CCB is fundamentally an alternative dispute resolution option.  A respondent served with a claim may opt out within 60 days, and the CCB will dismiss the proceeding.  So again, not a very effective club for the troll to wield.    

So, I really don’t understand why organizations like EFF and PK believe this issue belongs in their wheelhouses in the first place.  Much like their dogged opposition to the Music Modernization Act—which had support from rights holders, tech platforms, and nearly all of Congress—it seems these organizations are just culturally opposed to the existence of copyright no matter what.   On the other hand, they make up so much crap about copyright, how would they really know?

*Admittedly, Violent Hues would have done better to just pay the fee originally demanded by Brammer.