Tag: Goldman v. Breitbart

A Tale of Two Links: The Goldman & Playboy Opinions (so far)

“…it was the age of wisdom…” Goldman v. Breitbart et al

An opinion handed down last week by a New York district court marks a substantial victory for rights holders, especially photographers and other visual artists. In November, I wrote about this case and opined that a too-broad application of what’s known as the “server test” effectively strips a class of creators of their exclusive right to publicly display works protected by §106(5) of the Copyright Act.

To recap, Breitbart and nine other news organizations were sued by photographer Justin Goldman for infringement of his copyrighted photograph of athlete Tom Brady. The defendants caused the photograph to be visible on their pages, framed in conjunction with their news articles, by means of embedding code rather than copying the image and placing it on their own servers. Because the use of embed code to “point to the location” of a work on a third-party’s server does not involve the act of copying, defendants argued that they are shielded by the “server test” as applied in Perfect 10 by the Ninth Circuit in 2007.

In essence, the argument stemming from Perfect 10 is that an infringement of the public display right cannot exist when a defendant merely “points” to an image file hosted by a third party. Unsurprisingly, the defendants, with the help of the EFF, have claimed that any other understanding of the “server test” would—follow the bouncing ball—break the internet. (Eventually people are going to notice that the internet keeps not breaking, right?)

Judge Katherine B. Forrest unequivocally disagreed with defendants, citing legislative history, case law, and common sense, articulating several reasons why the display right is agnostic with regard to the means by which the display is made.  From the opinion:

“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.”

Citing the Supreme Court in Aereo (held to violate the companion right of public performance), Forrest notes, “…the principles that undergird the Aereo decision—chief among them that mere technical distinctions invisible to the user should not be the lynchpin on which copyright lies—apply with equal vigor here.” [Emphasis added] Those words go right to the heart of the semantic shell game web platforms play in an effort to get away with unlicensed exploitation of creative works. As stated in my November post on this story, the mere technicality that the user of a work is embedding a link should not be the standard on which this matter turns. In plain words, if a reader visits your web page and perceives pictures, video, or text that you’ve arranged on that page, you’ve created a display of those works. How you did it does not matter.

Judge Forrest agrees, and her opinion is essential if a right like public display is going to mean anything in the digital age because it’s obvious that an image file can sit in one location on one server to which millions of users can theoretically “point” and cause that image to be displayed millions of times. Embedding is within both the statutory and common sense understanding of what it means to display a work.

If the defendants appeal in this case, it will go to the Second Circuit, which has apparently not weighed in on the “server test” to date. Rejecting defendant’s claim that the matter is “settled law,” Judge Forrest looks to other courts and observes that, “Even a quick survey reveals that the case law in this area is somewhat scattered.” She further notes as significant the distinction between Google’s image search tool—at issue in Perfect 10—and the displays made by the news agencies in this case. She states:

“In this Court’s view, these distinctions are critical. In Perfect 10, Google’s search engine provided a service whereby the user navigated from webpage to webpage, with Google’s assistance. This is manifestly not the same as opening up a favorite blog or website to find a full color image awaiting the user, whether he or she asked for it, looked for it, clicked on it, or not.”

“…it was the age of foolishness…” Playboy v. Happy Mutants (Boing Boing)

I also recently posted about Playboy’s suit against Boing Boing, alleging contributory liability for copyright infringement of a large collection of its photographs. Having read the Playboy complaint, I can’t say I was terribly surprised that the California District Court granted the defendant’s motion to dismiss with leave for the plaintiff to amend. The complaint was not very clear, and it opened the door for the EFF to file an amicus brief that explored a litany of speculation as to what Playboy might have been alleging and then enter correspondingly speculative defenses into the record. Thus, I mocked EFF for citing fair use and calling Boing Boing “journalism.”

Although, in response to the motion, the EFF took a small victory lap for “free speech,” this case has nothing to do with free speech and, to my mind, should be much simpler than it appears. It shares a kindred sleight of hand with the Goldman case because “digital rights” groups and web platforms would very much like the act of “linking” to be universally shielded from liability. But the legal issues in these two cases are quite different. In Goldman, the “linking” created a seamless display of a work on the defendant’s web page. In Playboy, the allegation is that Boing Boing both promoted and facilitated infringement that was actually committed by another, unknown, party. In my post on the matter, I accused Boing Boing of engaging in this conduct solely to drive traffic to its site while adding nothing to the user’s experience in the process.

A simple way to understand this case is to substitute Playboy’s images for child pornography. I know it’s an overused example, but that’s because there is no confusion that child porn is unlawful in every sense of the word. If Boing Boing were to write a post that said something like, “Child pornography is a heinous crime that we would never condone, but reviewing these images provides insight into the minds of pedophiles,” and then they linked to said images, guess what would happen. That’s right. They could be held liable for facilitating and promoting access to unlawful material; and I doubt that any court, or many citizens, would be the least bit confused about this because linking to the material is not integral to reporting about it. This is a judgment call that professional journalists make all the time.

Returning to the Playboy complaint, it’s important to keep in mind that infringing content is, by definition, unlawful content—even if it’s not as dramatically unacceptable as child pornography. Thus, the unlicensed cache of Playboy photographs was unlawful content; and Boing Boing’s act of promoting and facilitating access to that content is arguably contributory according to the standards for such conduct as described in the criminal code. We’ll see if the attorneys for Playboy make this any clearer in a revised complaint, and I hope they do because the principle is more important than the infringement of their images.

Beginning in late 2016, a new discussion began about what kind of internet marketplace we want to have—one that truly serves the public good, or one that favors lazy exploitation and monetization of everything that moves. In fact, it’s interesting that these two “linking” tales happen to contrast some legitimate news sites (e.g. Time & Gannett) with a clickbait platform like Boing Boing because for years, content creators have watched the exploitative behaviors of the latter inform the sensibilities of the former. In other words, the web-only industry has taught traditional industry how to not license works like photographs. Hence, these two stories sit squarely in the column of the internet we don’t want in my view; and in the coming months or years, the EFFs of the world may discover that it’s actually possible to defend the goals of truly innovative and useful enterprises without defending every slapdash huckster or corporate exploiter with a URL.

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.