Originally published at: https://boingboing.net/2018/02/16/return-of-remierdes.html
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“…and the way that the link is handled is determined by the user’s tools, not the publisher’s links. Sometimes, users’ browsers prefetch links, sometimes they block them.”
I would argue that ultimately what determines how the link is handled is determined by the HOST server, which can serve the link or deny the request from the browser. That is WHY previous decisions on infringement are host, not browser or linker based. Certainly “linking is not infringing,” is the most logical basis for deciding most of these cases. Now my understanding is that in the Napster case linking WAS found to be infringing, but that is because Napster specifically indexed files on a distributed host network.
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Please tell me the judge brought up the series of tubes.
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Pifft. Then I’ll just highlight/copy/paste the text.
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Reading the EFF article, the issue here seems to be various news companies are embedding a tweet they knew violated a photographer’s copyright vs. contacting the photographer for the rights. That’s not a matter of fair use. They are unfairly profiting off his work.
Going after Twitter would be unreasonable, this is not.
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I read it different.
From the article:
It seems to me, the correct person to sue is the “someone else” that tweeted it. That person is the one who clearly infringed on the copyright. When sued for damages, the fact they shared it on Twitter and that it was later embedded in many news articles should all count towards the damage done by the infringement.
The groups that linked to a tweet shouldn’t be any more liable than Twitter itself is.
It’s probably an easy guess that all of those groups have deeper pockets than the “someone else” which is the real reason to sue them instead. This could be the formula for a great scam if it stands. The copyright holder and the tweeter just need to be in collusion and then demand money from the others.
*Edit: I probably should have said “Clearly that person is the correct target”, with no statement on if it’s actually infringement or not.
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Is it likely that you will pay me $10, and then not go see the latest Star Wars, because I tweeted a link to an excerpted scene, with Trump’s face on R2D2 or whatever?
That would need to be proven as copyright infringement. Likewise, for this case, they would still need to prove that the person who tweeted the image was actually copyright infringement. And, if so, include those other items when determining damages. From the article, I’m assuming (which I know is bad), that the copyrighted work is a photograph and that the person who tweeted it, tweeted the entire image with no modification or other commentary. Maybe they did something else which clears them of infringement. Either way, that’s who should be sued. Maybe they win, maybe they lose. I probably should have said “Clearly that person is the correct target”, with no statement on if it’s actually infringement or not.
In your example, I think you would be safe from Disney based on non infringing valid uses.
If you tweeted the entire movie in it’s original format with no modification, I’m guessing you would lose to Disney.
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You think that’s how the courts work? Dig right into the meaty legal issues, weigh all the evidence, and come to the most just verdict?
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Fine. Disney will just bankrupt you with court costs, no matter the actual legal basis. Beating you into submission no matter how much the actual facts are on your side.
Does that sound more likely? 
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I disagree, the news media organizations shouldn’t have assumed that the guy that tweeted the picture had rights to it. They know better, they make money out of sharing information, as the photographer does. They are very aware of image rights and costs, see below. How did that guy get a full resolution copy of the picture, anyway?
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How the link is handled on the publisher’s platform is determined by the publisher. The embedded tweet feature will not work if a publisher does not build that feature into their platform.
Also, an emdded tweet is a one-for-one replacement for a screensnapped tweet, which can be copyright infringement. Can you explain why one should be infringement and the other not?
On many social media platforms, the act of linking to a page creates an embed, likely with the page title, the lede, and perhaps a thumbnail of the first image. The user has no control, or must be a sophisticated user who understands how to edit the link to remove potentially infringing content. Holding the user responsible for what is effectively a decision of the social media service is a miscarriage of justice - to the user, it looks as if it’s outlawing mere mention of the content.
Since there was a circult split on the Perfect 10 decision even before this case, there really does seem to be the belief that mere mention of a protected work can be infringing. (There also appears to a belief in some quarters that the physical world is subject to copyright - I’ve counterclaimed on far too many landscape images that I know are entirely my own work, but have had takedown notices filed because someone else claimed substantial similarity. Sorry, those mountains, or that waterfall, or that lake, are out there, and look like that.) Essentially, it comes down to a concept that all ideas are owned by some publisher even before they are conceived, and must be licensed. And there is some special qualification, ill defined, to be a ‘publisher’ - it is no longer the act of producing an artifact for publication that defines one; not just anyone can aspire to the special privileges that a ‘publisher’ enjoys.
All of these are moves of publishers to reconceive copyright as imprimatur. The business idea is that they can control the marketplace of ideas (and charge rents on it) by presuming that it is unlawful to speak without having a publisher’s legal department backing one’s words. In Second Circuit jurisprudence, that’s very nearly true.
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Also, if you don’t want your images embedded, configure your server to look at the ‘referer’ (sic) and refuse to serve them to the embedder.
“Oh,” say the publishers, “but that means that we won’t get our share of views!” Sorry, you can’t have it both ways. I’m not going to pay for the privilege of advertising your product.
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This reminds me of the company that was pursuing the million-monkeys-typing for infinity idea of copywriting everything ever to be written by anyone because somewhere in their mountain of copyrighted work, they have already said the exact same thing.
That would be fun to argue.
“Your honor, the amount and substantiality of the portion used in relation to the copyrighted work as a whole is one of the tests for fair use. While my client’s novel is certainly a hefty 1500 pages, that is approximately a 0.000% portion of the infinitely large document that is allegedly being infringed.”
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Embedding a link rather than including a screenshot has NO effect that I can see as to whether there is infringement. What it DOES change is WHO is doing the infringement. “Look at those guys on the corner selling drugs.” is a far different action from selling drugs on the corner.
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A screenshot is an actual copy. It’s not a one-for-one replacement, because the embedded tweet ceases to function if Twitter takes it down. A screenshot of the tweet does not. So if I steal your photo and put it on twitter, and people link to it, and you convince Twitter that my tweet is a copyright violation and they take it down, everyone’s embedded tweets linking to my tweet no longer work. A embedded tweet is a pointer to a file stored elsewhere. It’s literally saying, “Go to this address and you can see this thing,” and then your browser goes there, retrieves the thing, and shows it to you.
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