Tag: Featured

Copyright Small Claims: A Solution for Many Creators

In my experience, the number-one complaint about contemporary copyright is that it is unenforceable in the digital age. Independent creators take one look at the scope of infringement relative to the cost of a single litigation and give up on the idea that they have any control. Many infringers—from casual to corporate—are either unaware that they’re infringing or they know how unlikely enforcement is for small creators; and this breeds the kind of smug responses we read about all the time. You know the ones. Where even a major brand uses a photograph for its marketing and then tells the photographer he has a lot of nerve to ask for money and should actually be grateful for the “exposure.”

On top of all this day-to-day infringement, the sage critics of copyright, those self-appointed defenders of the tubes, tell everyone there is no way to enforce copyrights online without sabotaging the delicate workings of the web. Some of these ivory-tower think-tankers even claim to care about authors with a sympathetic shrug and declare, “Artists do deserve to get paid, but we can’t afford to damage the innovation. You don’t want to hurt the innovation, do you?” Ergo, non-enforcement for thousands of small-scale and start-up creators becomes a predicate for steadily eroding copyright as principle.

The Small Claims Bill

It won’t solve every problem, but it should make a tangible difference for a significant population of creators who currently do not avail themselves of any enforcement procedure, but would if the barriers were lower. And frankly, copyright critics and internet-advocates (the ones who claim to care about creators) should actually support this bill because it establishes a forum for narrow, voluntary, and limited resolution between a rights holder and an alleged infringer without creating even a hint of a new liability implication for investing in web platforms.

H.R. 3945, the Copyright Alternative in Small-Claims Enforcement Act (CASE) has been more than a decade in the works. This amendment to the copyright law would establish a three-officer Copyright Claims Board within the Copyright Office, comprising two expert copyright attorneys and one attorney with specific experience in alternative dispute resolution. Rights holders can file complaints through electronic communications, without an attorney, and respondents may avail themselves of all the same defenses (e.g. fair use) that may be asserted in a federal litigation.

A Few Key Features

The small-claim option is voluntary for all parties and has the legal enforcement status of “alternative dispute resolution.” It does not preclude either claimants or respondents from availing themselves of litigation by opting out of the small-claim process; and re-litigation is an option if claims or counterclaims were not raised and decided upon by the Board. (See CORRECTION note below.) Both parties must agree to specific opt-out obligations. For instance, a respondent has 30 days to opt out upon original notice of proceeding or he/she may lose in a default judgment that is then enforceable through any court in the U.S.

A rights holder may initiate a small claim for a work that is not registered but must file a registration concurrent with the proceeding. If the work was not registered at the time of infringement, this limits the maximum award the rights holder may seek through the small-claim process, but it is an option for some relief that does not exist in federal litigation, which is impossible for an unregistered work.**

One big advantage to the small-claim provision that rights holders and copyright critics should like (though I wouldn’t hold my breath for the critics) is that the Copyright Claims Board is a copyright only panel. This is significant because ordinary court filings are sometimes bogged down by a litany of complaints or defenses that have little to do with copyright infringement, and the courts have to slog through these while the meter is running. Moreover, the small-claim panel’s specific expertise in copyright law is not necessarily going to be present in any number of federal judges, who might be presiding over hate crime in the morning and copyright in the afternoon. This copyright-specific aspect of the Board should be beneficial to both claimants and respondents.

Both claimants and respondents can avail themselves of the small-claim option without attending proceedings in person. Most of the process is handled through electronic filings with a proposal to use video conferencing for discussion and resolution. One of the myths being spread about this bill is that both parties are required to travel to Washington, D.C. Not true.

Attorneys may be employed by either party but are not required. This can prove particularly helpful in cases where the rights holder seeks a relatively modest settlement for an infringement he does not consider highly egregious or highly costly to his interests.

Although some of the usual copyright haters, like Public Knowledge, assert that the Board will become a “clearing house for awarding fees to every copyright troll” in the country, this assumption actually makes little sense. For example, the bill contains anti-abuse provisions that don’t exist in regular court proceedings. A bad-faith claimant can bring lousy copyright cases to court week after week. But a claimant who files bad-faith (i.e. harassing) complaints with the Copyright Claims Board may face financial penalties and/or be barred from using the small claims option for a year.

Rebalancing the Landscape

In everyday practice, a vast population of rights holders you’ve never heard of have neither the time nor the interest to restrict every casual use of their work online; and by the same token, a vast number of users you’ve never heard of don’t even understand when they’re infringing. This problem has been exacerbated by PR funded by the internet industry, which has a vested interest in weakening copyright and could not care less who among these nameless parties is harmed amid all the confusion.

These authors, who want to maintain control over their work, are not out to punish every blogger and they are certainly not expecting to earn big money through litigation. But the entrenched assumption that everything online is there for the taking has to stop. Most infringements are the result of laziness, ignorance, or greed—all of which is very easily ameliorated with a basic (and free-to-use) guideline: don’t use what isn’t yours without permission. And if the small claim option gives more independent creators a path to enforce their rights, then there’s a decent chance that small-time infringers will discover the value of this very simple rule of thumb.

A New Reason to Register Works

One of the concerns raised by my friend Leslie Burns is that the small claim provision will act as a disincentive to register works. She may be right with regard to people’s habits—artists do hate paperwork—but I would recommend that creators view the small claim provision as a great reason to register works because it provides a new path for enforcement that is only strengthened by timely registration.* Not only can a claim for a timely-registered work receive a higher maximum award for damages, but registration also shows an alleged infringer (respondent) that the author is serious about the work and the claim, and this should act as an incentive for the respondent to opt-in to the cheaper and easier small-claim process.
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*Timely registration has a technical meaning in the statute.

**Apropos a from a new reader, this does not reject the possibility of prevailing in a claim for actual damages for infringement of an unregistered work, but such claims are highly unlikely to avail themselves of the small claim option.

CORRECTION:  As originally published, I stated that parties could still litigate without restriction after the judgment of the Board. This was incorrect.

Hand photo by TanyaRozhnovskaya

Digital-Age Copyright:  Photographs and the News

You might think that among the most straightforward relationships between a user and a creator of a copyrighted work would be that of a news organization and a photographer—namely that the news organization should license the photographs it uses for any of its stories.  It is also common-sensical that whenever a news organization displays a photograph in a manner that either disseminates news under its brand and/or promotes its brand, that the organization is deriving commercial benefit from its display of the photographer’s work.  As such, it should not matter—in fact the nature of the web demands that it must not matter—where the image is actually hosted.  Unfortunately, that’s not necessarily how the law works right now.

This article in Above the Law by attorney Scott Alan Burroughs alludes to a case that exemplifies how the current copyright law underserves creators in the digital age. At issue is a photograph of athlete Tom Brady, taken by photographer Justin Goldman in 2016, and used without permission, first by Breitbart News and then by ten other news organizations.  Goldman alleges infringement of his exclusive right to display his work and seeks relief in the form of damages and attorney fees from all eleven news organizations.

The EFF filed an amicus brief (10/5/17) on behalf of the defendants, asserting the precedent established by the 9th Circuit in Perfect 10 v. Amazon.com (a.k.a Perfect 10 v. Google) (2007), in which the plaintiff argued that Google violated the display right by making full-size images available via the Google Image Search tool. The court held that because these full-size images were hosted in various places around the web and not on Google’s servers, that Google was not in possession of “copies” according to the plain language of the law (Sec. 101) and could not, therefore, infringe the display right.

The decision in Perfect 10 provided a precedent known as the “server test,” and the EFF may be correct that it will be the standard applied in the Goldman case.  But it shouldn’t be because it represents an easy end-run around the public display right that effectively obliterates the right in cyberspace.  It is also important to note that linking to pages (what is sometimes called “deep-linking”) should not be viewed as infringing, but this kind of “in-line linking” whereby a site embeds code to cause an image to appear on its page while the image is hosted by another party’s server, is the problem. (Meanwhile, note that Playboy is suing BoingBoing for displaying centerfold images in exactly the same manner.)**

The Server Test Doesn’t Make Sense

To maintain the purpose of copyright with respect to the way the internet functions, the standard in a case like Goldman v. Breitbart et al should not turn on whose server hosts a copy of the photograph, but who takes action to display the photograph and for what purpose. This interpretation of the author’s right to display works would conform to any reasonable person’s understanding of the actual market experience.  “The argument [for the server test], in essence, is that for-profit sites should be able to publish whatever they want without the consent of the artist so long as the photograph or video is published via an embed. This argument has no merit, though, because the end result is exactly the same to the viewer, and the viewer is the basis for the site’s profits,” Burroughs writes.

The news corporations in this case are making use of Goldman’s photograph to generate interest in whatever story they want people to read and to promote their brands online. Clearly, they are leveraging the value created by the photographer, which is exactly what copyright is designed to protect.  As such, licensing in these instances would be consistent with the goals of copyright law, regardless of the technical means by which a user makes the display of the protected work visible to its audience.  Moreover, the photographer may be earning revenue through advertising by allowing an image to be used on Site A, but if Site B, C, and D in-line link the image to their pages, the photographer loses revenue.

Clearly, this has implications beyond news organizations. If, for instance, Johnson & Johnson, by the rationale applied in Perfect 10,  were to display photographs for marketing purposes without permission, this would demonstrably undermine copyright’s intent; and it is hard to imagine that the public would actually support this kind of corporate appropriation of individual labor without permission or compensation. Certainly, every time a site like PetaPixel shares another story in which a business uses a photographer’s work for advertising without permission, I never see anyone cheer for the corporate infringer. (Though they may privately light sparklers or something over at the EFF.)

Is Legislative Reform Needed?

Be it far from this layman to question the statutory interpretations of the 9th Circuit Court of Appeals, but whether it’s in Goldman or another case, a few attorney colleagues tell me that the ruling in Perfect 10 is hardly the final word.  And many of them think the 9th Circuit erred.  But if that court’s “plain reading” of the statute holds sway in future rulings, then it may be necessary to clarify any pre-digital-age, statutory vagueness pertaining to the right make works available.

In 2016, the U.S. Copyright Office issued guidance on the Making Available Right apropos U.S. obligation to WIPO Internet Treaties. Although the Office recommended that legislative amendment was not needed vis-a-vis the treaties, the Register did recognize various inconsistencies in court rulings where cyberspace meets the rights of distribution, public performance, and public display.  In this regard, the Office provided a few possible avenues Congress could pursue to clarify these three exclusive rights relative to the internet, but also warned against approaches that would “represent a sweeping reconfiguration of U.S. copyright law.”

In particular, the guidelines state, “Should Congress … wish to clarify that the public performance and display rights cover offers to communicate a work, it could consider amending the Transmit Clause (§101) to provide that offering to transmit or otherwise communicate a performance or display to the public satisfies the definition of performing or displaying a work ‘publicly.’”  [Emphasis added]

A statutory change like this would confirm that the display right may be infringed by a party that makes a work publicly viewable, even without hosting a copy of the work.  This would correspond with common sense and the practical realities of the digital market, though many attorneys are likely to view such an amendment as unnecessary. Displaying an image on your site, no matter how it got there, ought to implicate the display right.

With pending proposals to create a small claims process for copyright infringement, it will be important to see what the courts do in cases like Goldman v. Breitbart.  This is because visual works are by far the most frequently and casually infringed works on the internet, and visual artists like photographers theoretically have much to gain from both a small-claims process and restoration of a meaningful display right.

Yes, any change in the status quo made by either the courts or Congress would make Google et al go ballistic; and the EFF would have to sit shiva for a year.  But it is well past time to drop the whole “copyright stifles everything” rhetoric along with all the other tech-utopian nonsense that nobody seems to be buying anymore.  It is time to recognize that technicalities like the “server test” stifle authors and creators without whom this whole internet thing would be utterly useless.

**CORRECTION:  Playboy was indeed suing Boing Boing at the time of this post but not for exactly the same conduct.  See post here.

Really, DON’T Believe Anything You See on the Internet

When that cliché first entered our consciousness, it wasn’t really fair. The internet between the mid-90s and the mid-aughts wasn’t what it is today. It actually was just a dumb pipe through which content could could be delivered from creator to consumer in a new way. It was silly to imply that one should not believe a news story published by the Washington Post just because it was on a screen instead of  paper — and that principle still holds true for most professional journalism.

But now, every legitimate news source swims in the same stream with all the garbage—from raw clickbait to lazy aggregators to hackers purposely trying to exploit underlying divisions in democracies—and the tools of manipulation are so sophisticated that many of the manipulators themselves don’t have to be. With a little practice using software that anybody can steal, a kid can create a video that makes it look like Hillary Clinton said that “all veterans are pussies,” and…well, here we are.

“One of the things I did not understand was that these systems can be used to manipulate public opinion in ways that are quite inconsistent with what we think of as democracy.”

That’s what Alphabet (Google parent company) Executive Chairman Eric Schmidt said, recently quoted in an article on FastCompany. And in keeping with the theme of this post, I don’t know what to believe. Were Schmidt and the rest of the leadership at Google honestly so drunk on their own utopian rhetoric about how wonderful their systems are that they failed to imagine—to say nothing of observe—how their products could be toxic for democracy? Or did they recognize it and not care until they were forced to care amid the fallout from the investigations into Russian meddling?

Facebook’s founding president Sean Parker—he was also the co-founder of Napster—told Mike Allen of AXIOS in a recent interview that Facebook was designed to “exploit a vulnerability in human psychology” in order to keep people on the site as much as possible. Parker told Allen that the creators of Facebook understood what they were doing and did it anyway, though perhaps did not quite imagine what the results would be when a billion people voluntarily spend hours in Zuckerberg’s ant farm. “…it literally changes your relationship with society, with each other … It probably interferes with productivity in weird ways. God only knows what it’s doing to our children’s brains.”

How much has changed in such a very short time. It seems like only yesterday the cheerleaders of Silicon Valley, with all the confidence of Camel-smoking doctors, kept telling us just how good their products were for democracy and for society overall. All this goodness was packaged into a single generic word innovation, and anything that stood in the way of innovation—like maybe the rule of law—was bad. Now, all of a sudden, we hear a lot of “Wow, we had no idea our systems could be used to totally fuck up the world! We’ll get some people on that right away!”

Of course, these companies either will not or cannot fully address the underlying reasons why their systems can be so toxic; and Parker put his finger on it when he admitted that Facebook was designed to take advantage of human folly. Facebook may clean up its act in certain regards—I actually believe Zuckerberg wants to—and Congress may enforce some effective regulations upon these platforms; but none of this will address the flaw in human nature that makes us more susceptible to emotional triggers than we are to reason and information. That’s why the underlying promise of the information age—that information can only have a moderating effect on discourse and interaction—is proving to be untrue.

There’s something fundamentally harmful about taking complex topics and issues and transforming it all into advertising, but that’s essentially what a platform like Facebook or Twitter does. “The sad truth is that Facebook and Alphabet have behaved irresponsibly in the pursuit of massive profits,” writes Roger McNamee for The Guardian. “They have consciously combined persuasive techniques developed by propagandists and the gambling industry with technology in ways that threaten public health and democracy. The issue, however, is not social networking or search. It is advertising business models.”

McNamee, who is identified as an early investor in Google and Facebook, describes how the advertising revenue models of these platforms drive, for instance, Facebook to deliver content based on user preferences, creating feedback loops called “filter bubbles.” People have been writing about the filter-bubble problem for several years now, but I suspect the problem is far too subtle to expect that the platforms themselves, with or without legislative mandates, will solve it.

Amid the recent flurry of allegations of sexual assault, satirical posts have appeared on Facebook with photos of Tom Hanks and leads saying, “Dozens of women come forward to…” And then, you click on the story, and it completes, “…say that Tom Hanks is a really nice guy.” Variations on this gag appear all the time, like the reports that Keith Richards is still alive. But you can bet the beer money that any number of people just scrolling through a feed on their phone, perhaps waiting in the supermarket line right next the old-school tabloids, will come away with the impression that indeed Tom Hanks was implicated in some sexual abuse claim. Then, the rumor gets repeated to a friend, and that’s more or less the state of “information” in the digital age. It’s the National Enquirer at “Google scale.”

According David Roberts, writing for Vox, America is in the middle of an epistemic crisis, suggesting that at least many citizens are beyond the problem of separating fact from fiction and are instead living in a world in which facts simply don’t matter. It is a mindset he calls “tribal epistemology—the systemic conflation of what is true with what is good for the tribe.”

For the time being, analysis of the online media universe reveals this problem is more prevalent on the political right (see support of Roy Moore even if he did assault a teenager), but the political left is hardly immune to this kind of tribalism. In fact, this blog was inspired five years ago when I witnessed this exact behavior among left-leaning friends, who were willing to share false information because it supported the outcome they believed to be right. So, although it is somewhat encouraging that this year marks the turning point when internet platforms will no longer be given a free pass — either by lawmakers or the public — to simply do what they want “for the greater good,” that hardly addresses how we individually and collectively will learn to cope with “God knows what’s happening to our brains,” as Parker puts it.