4 ms·

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

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.
      - DannyBee 9y ago
        ""Details are irrelevant" is the argument you get from people who don't want to consider the implications of the details." That's just a silly dig, considering i've spent years of my life and training considering the implications of the details of these very things. "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? This is basically a "laws should all be completely and totally logically consistent and judged by judgement automatons following finite state machines" As much as the news and reddit may make that out to be what happens, it is not what happens in practice. In fact, in the very thing you are talking about, courts in various countries looked at it said "nope, not okay". "But this is where we're getting to the part where the technical details have relevance." IMHO, no, they don't " 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." You can play this game all you want, i understand in detail the distinction you are trying to draw and pretty roundly reject it. It's just an attempt to abdicate intent and responsibility. The intent of the person who made the page is for the third party device to do what it did and display it. It did that. If there was a <murder> tag that instructed devices to murder the person named by the text a loaded from the ref attribute, and i used the tag, you don't get to say "well, it was just a piece of information, interpreted by a third party device". You intended it to murder someone when it was interpreted, and it did murder someone when it was interpreted. The same way i wouldn't feel "All i did was give the third party murdering device a link to some instructions, not the instructions themselves" is not the kind of distinction i think makes a lot of sense to try to hang your hat on. If the EFF/others want the law to be different, i'm actually all for it. I even think what i'm suggesting is a pretty shitty policy for the internet (and i spent years of my life fighting to push us towards a better copyright-free utopia ;P). But it's also what i think it says right now. ". Has your sentence retroactively become infringing because the user's device has improved?" No, because that wasn't the intent at the time i did it.
- Deregibus 9y ago
  Yeah, to be clear when I said “makes sense” I was referring to what allows for a functional ecosystem of Twitter, users, media, etc. and not a legal evaluation. IANAL and all that. In this case wouldn’t your innocent infringement example apply? As I understand it there’s an implicit license to use the content of tweets via an official Twitter embed. That would mean it would be fine to show the image via an embedded tweet from the copyright holder, as they agreed to that by posting the tweet in the first place and presumably could revoke that right by deleting the tweet. So the argument would be that the media sites had the rights to republish the tweet and thus believed that the author of the tweet had the rights to the contents of the tweet (which they didn’t). Is that logic not applicable here or is it that a media company should know better and thus it’s not a reasonable mistake? Also wouldn’t the DMCA be applicable here as the method by which the photographer could get the photo removed from Twitter?
srtjstjsj 9y ago
"good faith" doesn't make infringement non-infringing. It might mitigate damages though, for not being willful. EFF Deeplinks has a consistently bad record for misinterpreting court cases to drum up controversy, and today's example fits the pattern.

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.
    - DannyBee 9y ago
      ""Details are irrelevant" is the argument you get from people who don't want to consider the implications of the details." That's just a silly dig, considering i've spent years of my life and training considering the implications of the details of these very things. "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? This is basically a "laws should all be completely and totally logically consistent and judged by judgement automatons following finite state machines" As much as the news and reddit may make that out to be what happens, it is not what happens in practice. In fact, in the very thing you are talking about, courts in various countries looked at it said "nope, not okay". "But this is where we're getting to the part where the technical details have relevance." IMHO, no, they don't " 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." You can play this game all you want, i understand in detail the distinction you are trying to draw and pretty roundly reject it. It's just an attempt to abdicate intent and responsibility. The intent of the person who made the page is for the third party device to do what it did and display it. It did that. If there was a <murder> tag that instructed devices to murder the person named by the text a loaded from the ref attribute, and i used the tag, you don't get to say "well, it was just a piece of information, interpreted by a third party device". You intended it to murder someone when it was interpreted, and it did murder someone when it was interpreted. The same way i wouldn't feel "All i did was give the third party murdering device a link to some instructions, not the instructions themselves" is not the kind of distinction i think makes a lot of sense to try to hang your hat on. If the EFF/others want the law to be different, i'm actually all for it. I even think what i'm suggesting is a pretty shitty policy for the internet (and i spent years of my life fighting to push us towards a better copyright-free utopia ;P). But it's also what i think it says right now. ". Has your sentence retroactively become infringing because the user's device has improved?" No, because that wasn't the intent at the time i did it.
Deregibus 9y ago
Yeah, to be clear when I said “makes sense” I was referring to what allows for a functional ecosystem of Twitter, users, media, etc. and not a legal evaluation. IANAL and all that. In this case wouldn’t your innocent infringement example apply? As I understand it there’s an implicit license to use the content of tweets via an official Twitter embed. That would mean it would be fine to show the image via an embedded tweet from the copyright holder, as they agreed to that by posting the tweet in the first place and presumably could revoke that right by deleting the tweet. So the argument would be that the media sites had the rights to republish the tweet and thus believed that the author of the tweet had the rights to the contents of the tweet (which they didn’t). Is that logic not applicable here or is it that a media company should know better and thus it’s not a reasonable mistake? Also wouldn’t the DMCA be applicable here as the method by which the photographer could get the photo removed from Twitter?

srtjstjsj 9y ago

"good faith" doesn't make infringement non-infringing. It might mitigate damages though, for not being willful. EFF Deeplinks has a consistently bad record for misinterpreting court cases to drum up controversy, and today's example fits the pattern.