“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.