On April 14, Eric Garder, writing for the Hollywood Reporter, published a story under the headline: Court Rules Photographer Gave Up Exclusive Licensing Rights by Posting on Instagram. There is nothing technically wrong with that headline—and Gardner did not, I believe, misrepresent any facts in his article. But when I saw photographer Doug Menuez share this story on Facebook the other day, I had the same gut reaction that I bet a lot of visual artists and copyright watchers had. Those words “gave up” made me think, Great, some judge has actually ruled that posting an image on a social media account extinguishes all copyright in the work. (Yes, that is how the nerd in my head always talks.)
I noticed that copyright attorney Leslie Burns, who represents many photographers, bemoaned on Twitter the fact that this story is already being described as one in which uploading to Instagram et al automatically terminates copyrights. That is certainly not what the judge ruled in Sinclair v. Ziff-Davis and Mashable earlier week. But there is still much to this story—a good news/bad news tale—that should be of great concern to copyright owners.
The good news is that Judge Kimba M. Wood of the District Court for the Southern District of New York (SDNY) did not articulate any new opinions whatsoever with respect to copyright law. The bad news is that what happened to professional photographer Stephanie Sinclair is yet another reminder that the major tech platforms are predatory animals whose Terms of Service are toxic to creators. Here are the basics …
[Editor Charlie sez: Challenging Google will break the Internet!! Again!! Everybody drink!!]
I freely admit that one reason I procrastinated when it came to digging into Oracle v. Google (now Google v. Oracle) is the fact that this nine-year litigation, now headed to the Supreme Court, deals with software. Unlike most creative arts in which I have some background and knowledge, software might as well be magic spells that make our devices run (or not); and although this form of authorship is generally invisible or incomprehensible to most of us users, the code-writers say it entails creative expression, and so does the copyright law since 1980.
This clash-of-titans lawsuit, which currently stands with two rulings (in 2014 and 2017) in Oracle’s favor at the Federal Circuit Court of Appeals, will now ask the Supreme Court to settle two main legal questions: 1) whether the specific code (part of Oracle’s Java API) used by Google without a license in the development of Android is copyrightable in the first place; and 2) if that code is protected by copyright, whether Google’s use is protected by the fair use doctrine. I will actually address the legal narrative and issues in subsequent posts because on top of the triable matters and doctrinal debates, is a business and PR story that should probably be addressed first.
Regardless of one’s policy views or party affiliations, it seems clear that the magnetic poles are shifting with regard to both tone and agenda in American politics. And because many artists are moved to respond to social conditions, we are likely to see quite a few speak out in defense of civil liberties they fear may be threatened in the current environment. This will surely include threats—perceived or real—to the sanctity of the internet as the bulwark against encroachments on the First Amendment. This is not a new theme, and it is one that has been exploited to great effect by the internet industry as an excuse to attack legislative measures to enforce copyrights online and/or voluntary measures to achieve that goal.
The sound of the rhetoric may change somewhat in the coming months. If one was inclined to believe that copyright enforcement would harm free speech before, one may be twice as likely to believe that message in an increasingly anxious climate. But it still won’t be true. If there are indeed new First Amendment infringements to come, they won’t be grounded in copyright policy. To the contrary, no matter who occupies the Oval Office, or how cybersecurity practices evolve, the fact remains that a failure to effectively protect and respect creators’ rights online only disenfranchises the professionals whose voices have always been essential to democratic principles.
Read the post by David Newhoff on Illusion of More
Deputy Assistant Attorney General Renata B. Hesse, a former Google lawyer, issued two key recommendations. The first is that any of the performance rights organizations PROs — ASCAP, BMI, or SESAC—must license 100% of a song for public performance no matter what percentage of the song the PRO legitimately represents. Historically, when songwriters collaborate who are signatories to different PROs (which has happened thousands of times to produce songs you love), the associated PROs co-manage the rights so that all parties receive royalties accordingly.
Google won’t give up their government capture easily….
Last week, Hillary Clinton released her Initiative on Technology and Innovation, brief, which reads a bit like a missive from the Internet Association and does very little to clarify her own views—possibly because she doesn’t have any—on the role of copyright in the digital age. My general criticism of the whole brief is that it seems to view “technology” as an end rather than a means—still talking about access as its own reward, even in a time when Clinton’s opponent is as much proof as we should ever need that access alone does not necessarily foster a new enlightenment.
That Clinton’s statements are vague is the one criticism I share with Mike Masnick at Techdirt. Of course, what I hear in her rhetoric is that she’s been tippling at the Silicon Valley Kool-Aid, while Masnick seems to feel she hasn’t had quite enough.
The Google Transparency Project tracks connections between political analytics company “The Groundwork” owned by Eric Schmidt with one client–Hillary Clinton.