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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 server

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.
    - AnthonyMouse 9y ago
- mcbits 9y ago
  It seems like more than an implementation detail to me. If Twitter receives a DMCA notice and deletes the image, it will immediately be deleted from all of the sites embedding it. When the publishing, distribution, and unpublishing are entirely under someone else's control, it's really hard to justify treating a link as infringement. BTW I know you're talking about the way judges actually tend to interpret these things. I'm talking about the way they would interpret things if they had any sense. With your ebook example, if the ebook "auto-loaded and displayed that content for the user" then you're describing something completely different from what happens when a site links to a tweet. It's more like if the ebook reader parses "Encyclopedia Britannica volume B, page 38" whenever it appears in any ebook and embeds the contents itself. If Encyclopedia Britannica is violating someone's copyright on that page, it's just crazy to hold the ebook publisher liable.
  - DannyBee 9y ago
    "BTW I know you're talking about the way judges actually tend to interpret these things. I'm talking about the way they would interpret things if they had any sense." Gonna disagree, but if you live in the ninth, that's already how they think :) (now, FWIW; i'm also differentiating between what i think the law, as written right now, is supposed to mean, and what i think it should be. I think, right now, as written, this should be interpreted as infringement. I think the law should be changed, not twisted/ignored)
  - Deregibus 9y ago
    The sites aren’t linking to a tweet, they’re embedding them. There’s a difference of intent between a plain old <a> link to a tweet’s URL, and the full set of tags, scripts, and configuration used to embed a tweet inline with your page. It would be unreasonable to hold you accountable for a simple link if I had a browser plugin that automatically converted them into embeds, but if you used the twitter markup such that they would be rendered as embeds on any standards compliant browser that’s a different story.
    - mcbits 9y ago
      Embedding, a.k.a. hotlinking, a.k.a. transclusion is just another type of linking. Any of those terms would work just as well in my comment because they all share the property that the content is being published by someone else. But there isn't much of a difference between hotlinks and anchor links in this discussion anyway, since sites (e.g. Google, Pirate Bay) also face legal liability for simple anchor links to copyrighted works. Just Google "[any popular book] pdf" and read the DMCA blurb at the bottom of the results.
- mnm1 9y ago
  Can we start suing Google then for Google cache or the WayBackMachine for the same? They are certainly republishing my pages without permission. That's copyright infringement according to this criteria too. In fact, they host the content on their servers so there isn't even this technicality. What about the snippets Google shows in its search results? What about Slack when it embeds part of my page when someone posts a link?
  - slededit 9y ago
    TheWayBackmachine is operated by a library which gives them special license under copyright law. That said they will not make your page available publicly if you tell them not to. Google cache is copyright infringement however it may or may not be excusable under fair use depending on the circumstances.
  - DannyBee 9y ago
    "Can we start suing Google then for Google cache or the WayBackMachine for the same?" Already happened. Multiple times. In fact, the precedent the EFF is talking about was "Perfect 10 v. Google", which was about caching, thumbnails, and framing in google image search.

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.
  - AnthonyMouse 9y ago
mcbits 9y ago
It seems like more than an implementation detail to me. If Twitter receives a DMCA notice and deletes the image, it will immediately be deleted from all of the sites embedding it. When the publishing, distribution, and unpublishing are entirely under someone else's control, it's really hard to justify treating a link as infringement. BTW I know you're talking about the way judges actually tend to interpret these things. I'm talking about the way they would interpret things if they had any sense. With your ebook example, if the ebook "auto-loaded and displayed that content for the user" then you're describing something completely different from what happens when a site links to a tweet. It's more like if the ebook reader parses "Encyclopedia Britannica volume B, page 38" whenever it appears in any ebook and embeds the contents itself. If Encyclopedia Britannica is violating someone's copyright on that page, it's just crazy to hold the ebook publisher liable.
- DannyBee 9y ago
  "BTW I know you're talking about the way judges actually tend to interpret these things. I'm talking about the way they would interpret things if they had any sense." Gonna disagree, but if you live in the ninth, that's already how they think :) (now, FWIW; i'm also differentiating between what i think the law, as written right now, is supposed to mean, and what i think it should be. I think, right now, as written, this should be interpreted as infringement. I think the law should be changed, not twisted/ignored)
- Deregibus 9y ago
  The sites aren’t linking to a tweet, they’re embedding them. There’s a difference of intent between a plain old <a> link to a tweet’s URL, and the full set of tags, scripts, and configuration used to embed a tweet inline with your page. It would be unreasonable to hold you accountable for a simple link if I had a browser plugin that automatically converted them into embeds, but if you used the twitter markup such that they would be rendered as embeds on any standards compliant browser that’s a different story.
  - mcbits 9y ago
    Embedding, a.k.a. hotlinking, a.k.a. transclusion is just another type of linking. Any of those terms would work just as well in my comment because they all share the property that the content is being published by someone else. But there isn't much of a difference between hotlinks and anchor links in this discussion anyway, since sites (e.g. Google, Pirate Bay) also face legal liability for simple anchor links to copyrighted works. Just Google "[any popular book] pdf" and read the DMCA blurb at the bottom of the results.
mnm1 9y ago
Can we start suing Google then for Google cache or the WayBackMachine for the same? They are certainly republishing my pages without permission. That's copyright infringement according to this criteria too. In fact, they host the content on their servers so there isn't even this technicality. What about the snippets Google shows in its search results? What about Slack when it embeds part of my page when someone posts a link?
- slededit 9y ago
  TheWayBackmachine is operated by a library which gives them special license under copyright law. That said they will not make your page available publicly if you tell them not to. Google cache is copyright infringement however it may or may not be excusable under fair use depending on the circumstances.
- DannyBee 9y ago
  "Can we start suing Google then for Google cache or the WayBackMachine for the same?" Already happened. Multiple times. In fact, the precedent the EFF is talking about was "Perfect 10 v. Google", which was about caching, thumbnails, and framing in google image search.