7 ms·

The ruling actually seems very reasonable. Someone took a photo and posted it on his social media account. The platform license on those accounts presumably all

by sfifs 9y ago

The ruling actually seems very reasonable. Someone took a photo and posted it on his social media account. The platform license on those accounts presumably allows others to share as fair use Some for profit media companies then used the photo in their content without licensing hiding behind a technicality of it being served from a third party server and got stomped by the court. Presumably if the story was an artistic criticism of the photo or described the photo, they would have been safe under fair use.

deleted 9y ago
[deleted]
koboll 9y ago
17 U.S.C. § 107 Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
- alphaalpha101 9y ago
  There's a difference between 'this image has just sold for the most an image has ever been sold for!' and embedding a low resolution photo, which is the news reporting exception, and embedding the original as part of another, unrelated-to-the-image news story.
- dragonwriter 9y ago
  Reporting isn't automatically fair use, it's an example of a purpose which can be fair use depending on the fair use factors. And fair use is a defense, which only applies if a use is otherwise infringing.
Deregibus 9y ago
The photographer didn’t post the image on Twitter, someone else who presumably didn’t have a license to do so did. The sites then embedded that other person’s tweet. If it had be the photographer that posted the tweet then the media companies would have been in the clear AFAIK since part of Twitter’s TOS allows for embeds. This ruling doesn’t make a ton of sense assuming the media companies were acting in good faith. If they knew that the image was copyrighted and the Twitter user didn’t have the rights to post the image but embedded it anyway in an attempt To get around the copyright on a technicality then this seems more reasonable.
- DannyBee 9y ago
  IAAL In general, outside of any safe harbors, you are responsible for infringement when you republish something, even if it was by accident. IE if i reprint a newspaper article that fucked up and didn't clear an image, i am also a copyright infringer[1] The main thing that makes this not true on the web is the DMCA safe harbor for hosting third party content (which is inapplicable in this context). This ruling, IMHO, is completely and totally consistent with every copyright ruling i've ever seen about republication. [1] The circumstances in which you would have an innocent infringement defense would be something like: you having licensed, from the newspaper, the right the republish, and mistakenly, but reasonably, believed that they had the right to license you the image.
  - nprecup 9y ago
    But in this case the media companies are not the ones publishing the photo, Twitter is. The embedded data was never produced or even passed through their servers. It is loaded directly from Twitter.
    - DannyBee 9y ago
      So, this is basically a technical argument based on a technical implementation detail. These mostly are considered irrelevant and frequently fail (see, e.g., napster et al) It's true, fwiw, the ninth circuit did reject visual incorporation tests in favor of a physical transmission test. This is, IMHO, silly, and only some courts have chosen to follow it.
      - AnthonyMouse 9y ago
        > So, this is basically a technical argument based on a technical implementation detail. These mostly are considered irrelevant and frequently fail (see, e.g., napster et al) "Details are irrelevant" is the argument you get from people who don't want to consider the implications of the details. > I could simply avoid all liability by setting up a server/separate legal entity in a country with no copyright laws, place all images there, and then i've never published anything at all by your argument. Is this not exactly the sort of thing companies do on a regular basis to avoid, for example, taxes? Or minimum wage laws or a hundred other things like that? If there is a jurisdiction where it's legal then it's legal to do it in that jurisdiction, no? > Similarly, if i wrote a book, and on page 34 it said "for the text and images on this page, please see Encyclopedia Brittanica volume B, page 38", the law would probably be okay with that. If i had an electronic book that auto-loaded and displayed that content for the user, so the user did not have to do it, they'd probably consider it infringement. This is where we're getting to the part where the technical details have relevance. A website isn't a device, it's a piece of information which is rendered by a third party device. You are just telling them where they can find the information. But the third party browser on the third party device has the capacity to fetch and display it for the user. Consider a similar scenario: Devices improve to the point that they can parse the words "for the text and images on this page, please see Encyclopedia Brittanica volume B, page 38" and then automatically fetch and display the images. Has your sentence retroactively become infringing because the user's device has improved? This sort of thing starts to have real salience when you get into things like content addressable storage, where the hash of the data both identifies it and can be used to locate, obtain and authenticate it.

by sfifs 9y ago

deleted 9y ago

[deleted]

koboll 9y ago

17 U.S.C. § 107 Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

alphaalpha101 9y ago
There's a difference between 'this image has just sold for the most an image has ever been sold for!' and embedding a low resolution photo, which is the news reporting exception, and embedding the original as part of another, unrelated-to-the-image news story.
dragonwriter 9y ago
Reporting isn't automatically fair use, it's an example of a purpose which can be fair use depending on the fair use factors. And fair use is a defense, which only applies if a use is otherwise infringing.

Deregibus 9y ago

The photographer didn’t post the image on Twitter, someone else who presumably didn’t have a license to do so did. The sites then embedded that other person’s tweet. If it had be the photographer that posted the tweet then the media companies would have been in the clear AFAIK since part of Twitter’s TOS allows for embeds. This ruling doesn’t make a ton of sense assuming the media companies were acting in good faith. If they knew that the image was copyrighted and the Twitter user didn’t have the rights to post the image but embedded it anyway in an attempt To get around the copyright on a technicality then this seems more reasonable.

DannyBee 9y ago
IAAL In general, outside of any safe harbors, you are responsible for infringement when you republish something, even if it was by accident. IE if i reprint a newspaper article that fucked up and didn't clear an image, i am also a copyright infringer[1] The main thing that makes this not true on the web is the DMCA safe harbor for hosting third party content (which is inapplicable in this context). This ruling, IMHO, is completely and totally consistent with every copyright ruling i've ever seen about republication. [1] The circumstances in which you would have an innocent infringement defense would be something like: you having licensed, from the newspaper, the right the republish, and mistakenly, but reasonably, believed that they had the right to license you the image.
- nprecup 9y ago
  But in this case the media companies are not the ones publishing the photo, Twitter is. The embedded data was never produced or even passed through their servers. It is loaded directly from Twitter.
  - DannyBee 9y ago
    So, this is basically a technical argument based on a technical implementation detail. These mostly are considered irrelevant and frequently fail (see, e.g., napster et al) It's true, fwiw, the ninth circuit did reject visual incorporation tests in favor of a physical transmission test. This is, IMHO, silly, and only some courts have chosen to follow it.
    - AnthonyMouse 9y ago
      > So, this is basically a technical argument based on a technical implementation detail. These mostly are considered irrelevant and frequently fail (see, e.g., napster et al) "Details are irrelevant" is the argument you get from people who don't want to consider the implications of the details. > I could simply avoid all liability by setting up a server/separate legal entity in a country with no copyright laws, place all images there, and then i've never published anything at all by your argument. Is this not exactly the sort of thing companies do on a regular basis to avoid, for example, taxes? Or minimum wage laws or a hundred other things like that? If there is a jurisdiction where it's legal then it's legal to do it in that jurisdiction, no? > Similarly, if i wrote a book, and on page 34 it said "for the text and images on this page, please see Encyclopedia Brittanica volume B, page 38", the law would probably be okay with that. If i had an electronic book that auto-loaded and displayed that content for the user, so the user did not have to do it, they'd probably consider it infringement. This is where we're getting to the part where the technical details have relevance. A website isn't a device, it's a piece of information which is rendered by a third party device. You are just telling them where they can find the information. But the third party browser on the third party device has the capacity to fetch and display it for the user. Consider a similar scenario: Devices improve to the point that they can parse the words "for the text and images on this page, please see Encyclopedia Brittanica volume B, page 38" and then automatically fetch and display the images. Has your sentence retroactively become infringing because the user's device has improved? This sort of thing starts to have real salience when you get into things like content addressable storage, where the hash of the data both identifies it and can be used to locate, obtain and authenticate it.