Ask Dr. Copyright

Dear Doc:

The United States Copyright Act (17 U.S.C. §§101 et seq. – see, I can lawyer-speak!) was passed more than 40 years ago, in 1976. Back then, the Internet was the ARPANet, there was no World Wide Web, no twittering (except among groups of birds or young women, and no, we don’t say that about women’s utterances any more), no booking of visages, and no blogging. Chat was idle discussion, which was never snapped (for that would have ended the chat abruptly), linking was something best done with arms and chains, though rarely simultaneously, and embedding was similar to impaling, but with less severe consequences. The world seemed to be a calmer place. Today, for better or worse, we have lots of new electronic communications media, but not a new Copyright Act. How is an average judge to react?



K.B.Woods, Judge


Dear KB:

An average judge will just do what judges usually do: look to the past to figure out a rapidly changing future, thereby getting things involving technology horribly wrong most of the time. It’s called ruling by precedent or, if you want to really sound like a judge, “stare decisis” (which means ruling by precedent, but in Latin, which is really looking to the past, but the Doc digresses…)

In a recent federal copyright case in New York, Justin Goldman, a photographer, sued Breitbart News Network and other companies for infringing his exclusive right to display a photograph under §106(5) of the Copyright Act. Goldman alleged that after he took a photo of Tom Brady on July 2, 2016, (boo, hiss – the Doc is an IGGLES fan!), he posted it to SnapChat, and from there, it went “viral” (which the Doc knows is a good thing, rather than the start of a deadly pandemic – these kids and their words!), and ended up on Twitter in several “tweets” by different twittterers (sp?). From there, it was a digital hop, skip and embed until the photo showed up on the defendants’ websites. None of the defendant media companies actually downloaded the photo and hosted it. They simply used HTML coding to “embed” the photo from Twitter’s servers onto their pages. Users of Breitbart (“NotSoBrightBarts”?) and the other websites simply saw Goldman’s photo. (And we are not so dumb as to reproduce it here – if you’re really interested, just search for it on one of those fancy search engines people keep talking about.)

Now, every third year law student knows (or should) that Copyright is actually a “bundle of rights”. This concept has confused lawyers and judges since the passage of the Statute of Anne in 1710 (now who’s erudite???). In the United States, copyright includes the rights (§106):
“(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.”

The legal dispute in this case was whether you infringe copyright when you embed, but do not copy the photo to your own web site (“host”). The defendants said, obviously, that because they never made a copy of the photo (never mind that they actually did by viewing it in the first place, but let’s not confuse judges with the facts), they did not infringe. They relied on a California case called “Perfect 10” which is a smuttly little website, and which sued Google for making tiny “thumbnail” images of its smut, for display in the Google image search.  The courts in the Ninth Circuit invented a test that they called the “server test” that required a copy to be made and hosted in order to find infringement. Only the Ninth Circuit has approved this test, and the courts in the rest of the nation are pretty confused about what standard applies. In general, this topic technical (meaning that it involves engineering and such), and courts just get confused and reject technical distinctions.

The alternative to the “server test” is to just look at the actual copyright law. The display right doesn’t say anything about where something is stored. Thus, the Goldman court reasoned, you do not have to possess an image (i.e., store it on your server) to infringe the exclusive right to display that image. The court awarded summary judgement to Mr. Goldman (and damages will be determined in a second phase of the case, along with whether the defendants have legal defenses to the claim.) Bing, bang, boom – the entire way the Internet works goes up in a puff of legal smoke!

For now, if you’re copying materials and pasting them into your social media or web sites, cut it out (and don’t paste). That was already a no-no under every view (but we could argue for days about the concept of “fair use”, don’t get the Doc started…) If you’re linking, and you’re in the Ninth Circuit, you’re probably OK, but in the rest of the USofA, it’s a toss-up. If you’re embedding in New York, you’re in potential hot water. The Doc just gets a headache thinking about this issue.

If you use the Internet, and have a question about what’s OK (and honestly, who doesn’t?) call the attorneys at LW&H. They will read the case law, read the statutes, read the tea leaves, and come up with a pretty good and certainly useful answer that will absolutely be worth the paper it’s written on.

The Doc

— Lawrence A. Husick, Esq