In a recent post, I described how the “server test,” established in the Perfect 10 case, obliterates the display right for visual artists on the internet. I further opined that the “server test” is an irrational standard and also stated that Perfect 10 may not be the final word on the matter. For recap, the Ninth Circuit held in Perfect 10 that in-line linking (also known as “framing”) images on a website without actually hosting (i.e. copying) those images does not infringe the author’s right of public display.
A new case before a U.S. District Court in Dallas this month (The Leaders Institute v. Magnovo Training Group) entails several IP and non-IP disputes between the litigants, including copyright infringement of the display right by means of “framing” plaintiff’s images to make them available on defendant’s website. I’ll spare readers the long-winded details about these parties and their various disputes because they are not germane to the copyright issue. What is compelling about this case, and potentially good news for visual artists, is that Judge Jane J. Boyle said the “server test” doesn’t make any sense to her either. Here’s how she put it …
“…to the extent Perfect 10 makes actual possession of a copy a necessary condition to violating a copyright owner’s exclusive right to display her copyrighted works, the Court respectfully disagrees with the Ninth Circuit. The text of the Copyright Act does not make actual possession of a copy of a work a prerequisite for infringement. To display a work, someone need only
show a copy of the work; a person need not actually possess a copy to display a work. And to display a work publicly, a person need only transmit or communicate a display to the public.
Again, the person need not possess the display. For example, a person that went into a movie theater and used a video camera connected to the internet to broadcast a movie to the public would clearly be committing copyright infringement even though the person did not herself have a copy of the movie. Essentially, TLI’s framing scheme is like a live feed of Magnovo’s copyrighted website.”
Judge Boyle’s opinion seems to better conform to common sense than the “server test.” If a party displays a protected visual work, whether by in-line linking or magical incantation, that action alone should implicate the right of public display. As mentioned in past posts, visual artists are easily the most-frequently infringed authors on the internet. It’s so common that many photographers and other creators just starting out have all but abandoned any hope of controlling or being paid for their work. And that’s exactly how the major internet platforms and the freeloaders want it—a market where creators feel grateful just to be exploited.
Opinions like Judge Boyle’s can be cited in future cases to eventually overturn the opinion in Perfect 10, so this is potentially very good news for visual artists as it would restore the intent of the display right in the digital market. Add to this, the passage of the copyright small claims provision (H.R. 3945), and users might stop assuming every image they find is just there for the taking.
© 2017, David Newhoff. All rights reserved.