Tag: Featured

U.S. Court Orders Pirate Site Blocking. Internet Should Break Any Day Now.

And if it did, really at this point…?

As reported on TorrentFreak yesterday, the District Court for the Southern District of New York handed down three nearly identical rulings in copyright infringement complaints against three pirate streaming entities. Finding for the plaintiffs, who comprised several Israeli film and entertainment companies, there was nothing remarkable about the outcome of the decisions but for one feature. The pirate site owners, who did not defend themselves or appear in court, lost by default judgment, and the plaintiffs were awarded statutory damages to the maximum $150k per infringement for a total of over $23 million for all three suits.

But Andy Maxwell at TF is right that what is unique about these decisions is the district court’s order to all U.S. ISPs, which states the following:

IT IS FURTHER ORDERED that all ISPs (including without limitation those set forth in Exhibit B hereto) and any other ISPs providing services in the United States shall block access to the Website at any domain address known today (including but not limited to those set forth in Exhibit A hereto) or to be used in the future by the Defendants (“Newly-Detected Websites”) by any technological means available on the ISPs’ systems.

In other words, site blocking—a form of injunctive relief that has been applied in Europe, Canada, Australia, and other democratic countries (without breaking the internet), but which has historically not been so vigorously applied in the U.S. as this order demands. Stay tuned for wailing and gnashing of teeth from the internet industry and the usual network of “digital rights” groups proclaiming this decision a disaster in the battle for internet freedom and the speech right. And as Andy forecasts, we will likely hear renewed incantations of the acronym SOPA. “More than a decade after U.S. lawmakers scuttled the controversial SOPA legislation that would’ve required ISPs to block pirate sites, a US court has demonstrated that the ability to block sites has been available all along.” he writes in his intro.

And that’s not entirely without merit. One reasonable criticism of the SOPA/PIPA legislation was to ask whether it was somewhat redundant in light of the fact that injunctive relief of this nature was and is already available to the courts. Ordering an unnamed third party in a complaint to cease facilitating harmful conduct is not groundbreaking law, which is one reason why all the shouting about that legislation ten years ago was so ridiculous.

Still, stay tuned for the Knights Who Say SOPA to say SOPA once again in the hope of frightening people into believing that blocking access to a few criminal websites will lead to the death of the “open internet.” And this makes me think of a twist on another Monty Python routine, only in this case, the irony is a bit different. Because what has the “open internet” done for us other than conspiracy theory run amok, teenage suicide and depression, help turn America’s conservative party into a religious cult, allow rampant data leaks, aid an coup d’etat by a U.S. President, destroy the right of privacy, violent insurrection at the Capitol, novel ways to harass women, and battering the Fourteenth Amendment to a rhetorical pulp? Other than all that, what has the open internet done for us? Cue Michael Palin: “You can wish people Happy Birthday.”

I know. There are some other benefits, even on social platforms, and I use them myself. But the funny thing is that we can have those benefits without the lawless free-for-all bullshit promoted under the banner of “openness.” In the meantime, site blocking a few pirate sites? Bring it on.

Podcast: Copyright & Culture with Terrica Carrington

The theme of World IP Day this year is IP and Youth: Innovating for the Future. And one young IP expert trying to shape a better future for the next generation of creators is Terrica Carrington, VP of Legal Policy and Copyright Counsel at Copyright Alliance. With a passion for social justice, Terrica focuses a great deal of her energy and talent on broadening the copyright system to serve a more diverse range of creators—especially young creators of color.

In January, Terrica was presented by the Washington Area Lawyers for the Arts with the G. Hamilton Loeb Award for Pro Bono Excellence for her work supporting the arts; and among her many other activities, she co-hosts a series of panel discussions called Black in Copyright in collaboration with Copyright Alliance, the Copyright Society, and the Young Lawyers Division of the Black Entertainment & Sports Lawyers Association.

Episode Contents

  • 01:47 – Why copyright law?
  • 04:40 – Working in public policy.
  • 07:30 – Public policy and interest in social justice.
  • 08:27 – #BlackTikTokStrike
  • 12:07 – copyright in choreography
  • 19:52 – copyright & cultural misappropriation
  • 24:08 – #BlackTikTokStrike & the Elvis narrative
  • 27:29 – Copyright Alliance BIPOC initiative.
  • 33:46 – dialogue informing the law.
  • 36:06 – responses to the TikTok strike.
  • 38:39 – engaging young creators in copyright.

Sen. Hawley Merchandising That Photo Ain’t Fair Use

Mickey Osterreicher, general counsel for National Press Photographers Association (NPPA), wrote an open letter to Senator Josh Hawley of Missouri telling him to stop using a photograph on tee shirts and other campaign merchandise. You know the photo. The one of Hawley raising a fist of solidarity to a mob of knuckle-dragging seditionists shortly before many of them stormed the Capitol on January 6th. Captured by Politico staff photographer Francis Chung, Hawley’s merch reproduces the image with the senator cut out of the background, posterized in gray tones, and accompanied by the slogan “SHOW-ME STRONG!” (Yikes). Osterreicher’s letter begins…

Stop merchandising a widely published photo taken before the storming of the U.S. Capitol on Jan. 6, 2021, showing you clenching your fist in support of the mob. Stop being part of a long line of celebrities and politicians who think they can misappropriate images and music created or owned by others without permission, credit or compensation.

Professor of law Brian Frye disagrees. In a tweet posted early this week, Frye first assures readers that he is no fan of Hawley but then states that Osterreicher’s complaint is “ridiculously wrong.” He writes …

Yes, whoever owns the copyright in the photo is entitled to control its use, in order to generate profit. But their rights are limited by the fair use doctrine, which says that people are entitled to use the copyrighted works in order to criticize them … Josh Hawley is using a very well-known photograph of himself to criticize people who criticize him for supporting the January 6th rioters. That is precisely the kind of use the fair use doctrine was intended to protect. In fact, it is the kind of parodic use that the founding father sues to criticize loyalists in the Federalist Papers.

Most of the attorneys I know are reluctant to opine about even hypothetical cases without full knowledge of the facts, but not much more information is needed in this instance for this non-attorney to say that Frye makes at least one assumption that implies an error of fact, which serves as the basis for his multiple errors of law. The argument that Hawley’s merchandise expresses criticism of those of who scorn the senator for his conduct is razor thin in general and beside the point as a fair use consideration.

Any ordinary observer would perceive Hawley’s merch as conveying the same thing the prospective buyers of that merch see in the original photo—a man they revere for showing support for the 1/6 insurrection. That those observers see “hero” while many others see “traitor” has nothing to do with Hawley’s campaign minions adding new expression to the original work such that it would favor a finding of fair use under the first factor analysis for transformativeness. By reproducing the photograph to make and distribute derivative works (i.e., violating three exclusive rights under §106), Hawley has not imbued the image with new meaning within the context of the first prong of the fair use test.

Bizarrely, Frye’s “criticism” rationale would require that Hawley perceive the original photograph as intrinsically conveying “Hawley as traitor” and that the senator’s use of the work intentionally alters the original meaning in order to convey “Hawley as hero and mocking those who criticize him for supporting 1/6.” This is absurd on its face. These opposing perceptions of Hawley are brought by the observers to the image, and Frye is applying an eye-of-the-beholder consideration where it does not belong while inserting the word parody, where it does not apply.

Parody, if it exists at all, must target the work at issue, and not some other subject matter, in order for a use to weigh in favor of fair use. Ditto criticism, commentary, reportage, etc. It is a subtle distinction that confuses a lot of people, though I suspect Frye is expressing his opinion more than revealing any confusion on the matter. As a simple example, if a news organization produces a story about photographer Francis Chung and the moment this photo was taken, then use of the image to illustrate the story would favor a finding of fair use. On the other hand, if the news organization is strictly reporting about Sen. Hawley in general, or his conduct on 1/6, use of the photograph would ordinarily require permission.

Further, Frye misstates the commercial consideration when he uses the word profit as the exclusive interest of the copyright owner. He may wish the exclusive rights of the copyright owner were this narrow, but they are not. A more correct word would be gain. If the party making use of the work gains materially from the use—and seeking career advancement as a politician is a form of gain—any court considering the matter would correctly identify Hawley’s use as commercial, which disfavors a finding of fair use. This would be true even if Hawley’s political operation were giving the merch away for free, which of course, it is not. So, the use is commercial in every sense regardless of “profit.”

Frye compounds these errors of copyright law by implying in his statement that Politico’s enforcement in this instance is being used to stifle Hawley’s speech. He joins other copyright critics in alleging the abuse of copyright law to “shut people up.” And he obviously means it because he doesn’t like Hawley any more than I do. But this is another subtlety often missed or elided about copyright in this context:  copyright rights do not preclude a party from speaking but rather preclude a party from using the owner’s expression to speak on their behalf. Because copyright critics fundamentally reject many foundations of copyright rights, they cannot bring themselves to acknowledge that unlicensed use of works can amount to coerced speech, which is itself an infringement of the speech right.

When you believe that copyright law is inherently a form of censorship, it produces some untenable interpretations of fair use. Just because the First Amendment is an underlying rationale for the fair use doctrine, this does not mean that all protected speech favors a finding of fair use. If this were so, the multi-factor fair use analysis would hardly be necessary since protected speech is almost limitless. Frye et al. may advocate this view, but it is not doctrine and never has been.

The image of Hawley itself is blood boiling. A U.S. Senator saluting a 21st Century legacy of the mob James Madison feared—endorsing a dangerous lie to animate a riot which, if successful, would end the constitutional order of the United States. That Josh Hawley happens to be a graduate of Yale Law School—hallowed ground of the Puritan-to-Federalist origins of the country—adds an extra layer of Where the fuck are we? to his emblazoning that image of himself onto cammo pattern beer koozies. I cannot reconcile all that in this post, but at least I can argue with confidence that Hawley’s merch sure as hell ain’t fair use.