Tag: Featured

Second Circuit Soundly Denies Rehearing to Warhol Foundation

Many copyright observers, me included, believe the Supreme Court’s majority opinion in Google v. Oracle was deeply flawed because rather than answer the copyrightability question presented (i.e. whether APIs are properly a subject of protection), the Court instead deconstructed that analysis and spread it across the four factors of the fair use test. As a result of that decision, copyright case law was left with a fair use opinion so over-broad in some of its reasoning that it also explicitly stresses that its findings should be read as unique to that case and not interpreted to disturb fair use doctrine in general. Warhol

And rightsholders should be very glad the Court sought to limit that opinion because almost immediately on the heels of the decision, the Andy Warhol Foundation filed a petition for en banc rehearing at the Second Circuit, principally on the basis that Google v. Oracle had altered the fair use analysis in its favor. At issue is Warhol’s use of photographer Lynn Goldsmith’s unpublished photograph of Prince (see background below), and as stated in earlier posts, I would personally find non-infringement in the Warhol screens, but not for most of the reasons presented by AWF, and especially not for the reasons adopted in Google.

What was most concerning for creators about the Google decision was the very broad opinion (mostly discussed in the analysis of fair use factor four on potential market harm) that general social purpose may be served by finding fair use of even verbatim copying of protected works. Thus, AWF argued that, just like software innovation serves social purpose, so too, does fine art serve a social purpose, even where verbatim copying exists.. And while those generalizations are true, one can imagine how a too liberal reading of the “social benefit” premise might find fair use in almost anything.[1] Thus, AWF’s petition for rehearing was the first test of the Court’s stated limitations in Google, and here, the Second Circuit was unequivocal. In a withering 63-page opinion, it responded specifically to the argument that Google v. Oracle had changed the law thus:

In particular, the Supreme Court in Google took pains to emphasize that the unusual context of that case, which involved copyrights in computer code, may well make its conclusions less applicable to contexts such as ours. Thus, while Google did indeed find that the precise copying and incorporation of copyrighted code into a new program could (and did, on the particular facts of the case) constitute fair use, the opinion expressly noted that ‘copyright’s protection may be stronger where the copyrighted material . . . serves an artistic rather than a utilitarian function.’

And to further emphasize that the outcome in Google had not altered fair use doctrine as AWF asserted, the opinion states:

And indeed, the Supreme Court did not leave that conclusion to inference, expressly advising that in addressing fair use in this new arena, it ‘ha[d] not changed the nature of those [traditional copyright] concepts.’

So, this is an odd one to comment upon for me because I believe the fair use reasoning in Google v. Oracle is very bad law, while I find the Second Circuit’s analyses in Goldsmith to be generally good law, albeit arriving at a conclusion with which I disagree. Most importantly for rightsholders, though, is that the first attempt to exploit the Google decision beyond the limits of a certain type of computer code has failed. And that is certainly very good law.

Background on AWF v. Goldsmith (reprinted from earlier post)

Lynn Goldsmith captured the photograph at issue in 1981, during a truncated photo session with the semi-reclusive musical artist Prince Rodgers Nelson, who was then barely known to mainstream audiences as Prince. Goldsmith contends that she made certain creative choices resulting in an image of the “vulnerable human being” behind the persona. The photograph was never published but was licensed in 1984 (unbeknownst to Goldsmith) to Vanity Fair as a “reference photo” to produce an illustration to accompany a story about musician’s rise to stardom. In fact, the photo was used by Andy Warhol make a series of silkscreens similar to those he has made of Marilyn Monroe, Mao Zedong, etc., all using photographs as original sources.

Goldsmith was not aware of the existence of the Warhol screens until 2016 when, after Prince’s death, Vanity Fair published a special edition with one of the Warhol versions on the cover. At that time, Goldsmith communicated to the Andy Warhol Foundation (AWF) that the works may infringe the copyright on her still unpublished photo, and in response, AWF filed suit seeking a declaratory judgment of non-infringement or, barring that, a finding of fair use. The district court held the Warhol screens to be fair use, primarily by following the Second Circuit ruling in Cariou v. Prince, but on appeal, the court reversed, finding the Warhol screens are not fair uses.

[1] Notably, the Court could have served the same intent by finding APIs to be uncopyrightable, which would have been a cleaner ruling with respect to copyright law in general.

Professor Citron Proposes Civil Remedies for Violations of Intimate Privacy

At a panel hosted by The Reykjavik Dialogue,[1] during a discussion about law enforcement, justice, and sex discrimination, Mary Anne Franks, co-founder of the Cyber Civil Rights Initiative noted that when her organization asked perpetrators who had engaged in revenge porn what would have stopped them from doing it, the answer was almost universally, “If I thought I could go to jail for it.”

The act of distributing intimate, private images via the internet without permission of the persons depicted is a crime—one that causes ongoing harm to victims, including harassment and violence, destruction of interpersonal relationships, loss of employment opportunities, psychological disorder, and suicide. And thanks substantially to the efforts of Franks and her colleague at CCRI, Danielle Keats Citron, nearly every state has criminalized the act of nonconsensual distribution of intimate images; and a federal bill to do likewise, the SHIELD Act, passed the House in March as part of H.R. 1620.

But while these laws pave the way for prosecution of the individuals who engage in this conduct, they do nothing about removing these violations of intimate privacy from the websites hosing the material. And to make matters more complicated, “deepfakes” technologies make it relatively easy to depict just about anyone in intimate or sexually explicit material for which they were never actually photographed.

Citron Proposes Privacy Injunctions

In a new paper that addresses the nonconsensual distribution of both real and manufactured images, Citron proposes two interdependent legal mechanisms to overcome the hurdles to removing this kind of content from the internet, and she also discusses the First Amendment questions raised as both a constitutional and a cultural matter.

First, Citron argues that courts must be empowered with “clear legislative permission” to provide plaintiffs with injunctive relief by ordering sites “to remove, delete, or otherwise make unavailable intimate images, real or fake, hosted without written permission.” One might think this is common sense, or simply a matter of basic decency, but court orders to remove material of any kind have been assiduously opposed by internet platforms large and small, and with considerable legal and PR support from “digital rights” activists like the Electronic Frontier Foundation. (See post here and here about Google v. Equustek & Hassell v. Bird.)

The rationale usually argued in the blogosphere and the courts for refusal to remove any content is the First Amendment—a fallacy that now roils the public debate—but the legal foundation that has given the platforms the swagger to distort the speech and press rights has been the courts’ over-broad interpretation of Section 230 of the Communications Decency Act as a blanket immunity. Not only have platforms been shielded against being named parties to civil litigation, but 230 has been invoked as the reason to shield them even from injunctions that do nothing more than order the removal of harmful material. Naturally, when a web company cannot be held liable for anything, it’s very easy for its operators to call all content “speech” and tell the public that all platforms are inherently engines of free expression.

Thus, in order for the above-mentioned legislative permission to be effective, Citron argues, as she and Franks have in earlier papers, that, “Congress should amend Section 230 to make clear that platforms and search engines can be sued in cases seeking injunctive relief and attorney’s fees related to the removal of intimate images hosted without written consent.”

Citron acknowledges that the solution is not perfect, particularly because litigation directed at one incident on one platform does not address the likelihood that intimate images will be distributed across multiple sites; but she writes, “Victims need to know that society recognizes the damage to the dignity and intimate privacy of victims, that law can help mitigate the damage, that sites are not law-free zones, and that lawyers will represent them.”

If that sounds like Citron’s proposed remedies are more symbolic than remedial, I will echo her comparison to civil rights legislation and argue that we should not underestimate even the symbolism of law to effect widespread remedies by fostering cultural and behavioral change. Presumably, most people do believe the act of distributing intimate images without permission is wrong, whether for revenge or any other motive. So, it helps when the law says it’s wrong, too. But at the same time, Citron addresses a broader cultural phenomenon in which Americans in particular struggle with our brand of the speech right and the distinction between access to information and prurient curiosity.

As a constitutional question, when a law intersects rights like those enumerated in the First Amendment, it must be held to the standard known as strict scrutiny. This means that a statute must serve a compelling public interest and must achieve a narrow purpose that cannot be achieved through less restrictive means. Here, Citron notes that the state laws criminalizing the nonconsensual distribution of intimate images have already held up to constitutional challenges in Vermont, Illinois, and Minnesota, but she also discusses that gray area where the public’s right to know is often too easily conflated with general interest.”By my lights, there can be a vast difference between learning about a public official’s intimate information and seeing photographs or videos documenting it. That distinction is worth careful consideration,” Citron writes.

Agreed. Specifically, did the American public have a right to know that Rep. Katie Hill was intimately involved with a member of her staff and, allegedly, using marijuana? Yes. Even though I personally do not care much what an elected official does in her private life unless it directly intersects with the official role, those allegations are certainly news that voters have a right to know. But I agree with Citron that there is a moral line—I would say a chasm—between a news report about Hill’s conduct and the publication of her intimate images (albeit semi-redacted) on the site RedState.

Hill sued RedState owner Salem Media,[2] and the publisher was granted a motion to dismiss the complaint under California’s anti-SLAPP law,[3] with the court finding, in Citron’s words, that “the photos shed light on Hill’s fitness for office.” The hell they did. How the information about Hill’s conduct sheds light on her fitness for office is up to the voters, but the leaked photos were nothing more than RedState’s opportunity to earn revenue by pandering to the worst impulses of the electorate, which increasingly cannot distinguish between political discourse and tribal brutality. RedState’s publication of the photos is barely distinguishable from revenge porn disguised as political reportage.[4] And to add insult to injury, Hill had to pay $200,000 for Salem’s legal fees.

As Citron notes, “Most cases involving the nonconsensual disclosure of intimate images will not present close calls about the boundaries of the public’s legitimate interest.” And, of course, this is correct. Most individuals who engage in this kind of behavior are not even propaganda mongers, let alone journalists. But I do suspect the techbro culture of the internet, where perhaps the blurry lines we see on a RedState re. Hill or a Gawker re. Hulk Hogan, imply to those other bros who violate intimate privacy that what they are doing is not criminal. It is. And it is time for the laws to catch up to that reality.

[1] Renewing Activism to End Violence Against Women www.rekjavikdialogue.is

[2] Hill’s counsel is Carrie Goldberg, leading specialist in this area.

[3] Strategic Lawsuit Against Public Participation.

[4] To be clear, I would say the same thing about the publication of similar photos of Reps. Boebert or Greene for whom I have nothing but contempt.

NC Court Grants Motion in Allen v. Cooper to Reconsider Takings Claim

On March 23, 2020, the Supreme Court remorsefully found in Allen v. Cooper that its own precedents obligated it to affirm that states are immune from federal litigation in claims of copyright infringement. On September 4, 2020, plaintiff Rick Allen filed a motion to reconsider the North Carolina district court’s 2017 dismissal of his takings claim under the Fifth Amendment for that state’s unlicensed use of his audio-visual works documenting the recovery of Blackbeard’s ship Queen Anne’s Revenge. On August 18, 2021, the court granted Allen’s motion.

Anyone who has followed the matter of sovereign immunity and state infringement of copyrighted works is aware of the byzantine, Heller-esque logic at the heart of this mess in which no reasonable party believes that justice is being served. Still, here’s the general reasoning in plain terms:

The Eleventh Amendment bars persons from bringing federal lawsuits against state or state actors …

BUT Congress, believing (perhaps naively) in its Article I powers to make laws, passed a trio of IP remedy statutes, clearly articulating its intent to abrogate sovereign immunity in cases where the state, or state actors, infringe trademarks, patents, or copyrights.

BUT in a series of cases in the late 1990s and culminating in 2000, the Supreme Court decided that Congress does not have the right under Article I to abrogate Eleventh Amendment immunity, and thus, held the three IP remedy laws to be unconstitutional.

BUT in Allen v. Cooper, although the Supreme Court affirmed those 90s-era decisions under the principle of stare decisis, the justices seemed pretty sad about it, even calling the state of North Carolina et al “pirates” for their conduct toward Mr. Allen et al. Thus, the Court also provided a roadmap for Congress to validly abrogate sovereign immunity in the future.

NOW, one of the principles supporting Eleventh Amendment immunity is that a plaintiff who has a beef with a state is presumed to have recourse to due process in that state’s courts. BUT there is no mechanism for bringing a copyright infringement claim in state courts. SO, that’s a head-scratcher.

MEANWHILE, the Fifth Amendment prohibits the state from taking private property for public use without due process, and the Fifth Amendment naturally carries more weight than a few pesky statutes written by Congress.

BUT at the time that Mr. Allen initially filed a takings claim against North Carolina in 2017, the legal precedent held that before a party may file a claim in federal court, he must first try to remedy his complaint in state court.

BUT when the complaint is an unconstitutional taking of an intangible form of property protected by federal statute, devising a state complaint is dubious at best. AND even if a plaintiff does file a claim in state court and loses, he is then barred from filing a claim in federal court.

MEANWHILE, just to be total dicks about this particular case, North Carolina passed a statute colloquially called “Blackbeard’s Law” which asserts state ownership of any AV material captured of any historic vessel found in North Carolina waters.

THEN, in 2019, the Supreme Court held in a municipal takings case, Knick v. Township of Scott, that a plaintiff need not exhaust state remedies prior to appealing to a federal forum for a claim of “unconstitutional treatment.”

SO, the decision in Knick created the foundation for Allen’s motion to reconsider his takings claim, and the District Court for the Eastern District of North Carolina agreed.

PLUS, because the Supreme Court held that the copyright remedy law was invalid as a prophylactic abrogation of immunity, the district court will now reconsider Allen’s case in light of United States v. Georgia (2006), which allows for case-by-case abrogation, if there is both a violation of federal statute and constitutional rights.

NOW, this will be interesting to watch. For one thing, if Rick Allen finally achieves justice and compensation, other rightsholders with infringement claims against state actors may also find remedies.

More broadly, though, when the Supreme Court ruled in Allen, it invited Congress to have another go at writing statutes to abrogate state immunity in IP infringement claims against states.[1] But in doing so, the Court drew a very narrow roadmap through the Fourteenth Amendment §5, which grants Congress authority to pass laws that bar state deprivation of property without due process under §1 of that amendment. So, with that in mind, this quote from the district court’s decision to grant Allen’s motion for reconsideration seemed worthy of highlight:

“Even though Knick was not a sovereign immunity case, its conclusion that a compensatory remedy is constitutionally-required was necessary to its decision and is contrary to [the precedent] conclusion that state sovereign immunity can bar takings claims brought under the Fourteenth Amendment.”

What that suggests to this lay reader is that if Allen prevails in his takings claim, and Congress does write new IP remedy laws, the statutes are likely to hold up to a constitutional challenge predicated on sovereign immunity. In fact, in granting this motion, the district court also reiterated its own interpretation on the limits of Eleventh Amendment immunity, writing:

“…this Court stated that the position that the Eleventh Amendment was intended to constitutionalize a broad principle of sovereign immunity contradicts both the historical evidence and the plain meaning of the Amendment that the founders wrote a Constitution upon the sovereignty of the people, rather than that of the States.”

Meanwhile, any state actors who interpret the SCOTUS outcome in Allen as a license to steal intellectual property, may want to reconsider adding to the body of evidence showing that state infringement is rampant, because that evidence will be the foundation on which Congress writes new laws abrogating sovereign immunity in IP cases.

This all seems like a long way to go to right an obvious wrong, and kudos to Rick Allen and his counsel for continuing this fight, even after defeat in the Supreme Court. Assuming this issue will one day be resolved, rightsholders will owe Allen and others in this fight a tremendous debt of gratitude.

[1] With the exception of Justice Thomas, who stated in his concurring opinion that the Court has no business directing Congress to do anything at all.