SPEAKER 1: And cut. SPEAKER 2: Did we get it? SPEAKER 1: I think so. SPEAKER 2: All right, great. Just make sure the Cobra Kai snake comes in at the end, all right? I want it to really pop. Make it Chrome. And throw "Thunderstruck" under it. SPEAKER 1: I'm pretty sure the rights for that song will cost too much. SPEAKER 2: No, I already own it. Cassette's in the car. Oh, and put one of those hashbrowns at the end, you know, like hashbrown Team Cobra Kai or something, and then send it to the internet! [MUSIC PLAYING] CHARLIE BENNETT: You are listening to WREK Atlanta, and this is Lost in the Stacks, the research library rock'n'roll radio show. I'm Charlie Bennett in the virtual studio with Marlee Givens, Fred Rascoe, and Wendy Hagenmaier. Each week on Lost in the Stacks, we pick a theme and then use it to create a mix of music and library talk. Whichever you're here for, we hope you dig it. Our show today is called "The Server Rule and Polar Bears on Thin Ice". WENDY HAGENMAIER: A heartbreaking video of a polar bear affected by the loss of habitat due to climate change was recently the center of a legal action against the so-called, quote, "server rule". That's the right to embed a video posted on something like Facebook or Instagram onto another web page somewhere else. CHARLIE BENNETT: I thought that was just the net. That's just the web, isn't it? FRED RASCOE: Yeah, it's pretty common practice, but maybe it's not a practice that will last. MARLEE GIVENS: That sounds like something that Fred would call copyright shenanigans to me. And when we have copyright shenanigans, we know who to turn to, our legal counsel, Phillip Burrus of the Burrus Intellectual Property Law Group. He'll break down the case and let us know what's in store. FRED RASCOE: And our songs today are about taking online content, figuring out where things really are, and the legal mysteries of copyright. But the idea for this episode started with one lonely polar bear, so let's start the music that way, too. This is "Polar Bear" by Ride, right here on Lost in the Stacks. [MUSIC PLAYING] MARLEE GIVENS: You just heard "Polar Bear" by Ride. This is Lost in the Stacks, and our interview today is with Philip Burrus of the Burrus Intellectual Property Law Group in Atlanta, Georgia about the copyright shenanigans of the server rule. FRED RASCOE: When we want to talk about intellectual property shenanigans, we bring you in, whether it's patent trolls or small claims courts for copyright. And so there's another shenanigan that caught my eye that I wanted to bring you in on. And it's all about what is called the server rule, or the server test, and that's all about embedding things that live in one website into another website. Just so that we can get started on the same page here, can you talk about embedding and what that means? PHILIP Burrus: Yeah, sure. So there are a couple of different ways to link content from one site to another. The most common way that you've seen all the time is called deep linking, and that's where you just post a link to a website. It's just the URL. It shows how to get the website. And if somebody clicks the website, clicks that link, it takes them to another site. So if I'm in a browser and I'm in one page and I click a link, it takes me to another page and I'm at that other page. The difference with embedding is in embedding, you take some code, you insert that code into the HTML language of a website page. And when that page loads, this little snippet of code goes and pulls content from another website and places it into the website that has the code. So if I build a website and I really like Fred's Instagram page and I'm like, hey, everything he posts I want to put on my page, rather than going and cutting and paste in all of the pictures individually and putting them over here, which may also be some type of copyright infringement, I can go and I can grab a snippet of code, drop it into my website, and every time somebody pulls up my page, it shows all of your stuff. And all of the major social media platforms like Instagram and Twitter, they have this feature. And it's primarily used to allow creators to build their own websites, to show their content without having to make these links, like I was talking about. FRED RASCOE: Right. And that embedding it rather than what you called like copying and pasting, that copying and pasting that's like making a copy and hosting it on your own computer. And what it makes it allowed, what makes embedding allowed is because it's actually still technically living in its home server. So it's still technically living on that Instagram page or that Facebook page. PHILIP Burrus: Well, we will use the term allowed very loosely. So there are a couple of things there to unpack. So traditionally, when you think of copyright infringement, it's making a copy, right? Copyright protects your ability to make copies. You can't make a copy of somebody else's work without their permission. And to infringe a copyright with that standard takes two things. You've got to have access to it and you have to physically make a copy. But an important thing to remember is that's only one of the bundle of rights that you get with copyright. There are a whole bunch of other rights, as well, that include publicly performing a work, making derivative works, publishing the work when you publish a work. And one of the big important ones is public display. There is a public display right. And when I get to embedding versus deep linking, the question is not so much about copying, about whether by embedding I am displaying another's work without their permission. And that's the real issue that came to the forefront of this Paul Nicklen case that we originally discussed. And that's what they focused on was the display right and not so much the reproduction right. FRED RASCOE: Yeah, that Paul Nicklen case, I want to bring that into it because that's the shenanigan that made me think of this and made me think that well, we need to call our intellectual property counsel and expert here. So just to familiarize our listeners, Paul Nicklen, nature photographer, nature videographer took a video of an emaciated polar bear posted it on his Facebook page and offered it, said, hey, if you want to use this video, you can license it. National Geographic, for one, did license it. They paid him like $6,000 or something along those lines to license the video, and they created a story. But another company, Sinclair Broadcasting, they have lots of television stations and media stations and they put on their website this same video. But instead of licensing it and putting their own licensed copy on, they just embedded that Facebook copy. PHILIP Burrus: Yes, although it was Instagram. So Nicklen, he did post on Facebook and Instagram. But-- and he also-- so Nicklen is a very well known nature photographer, posted to National Geographic-- or photographs for National Geographic and other publications, super well known. And he is interested in climate change and things of that nature, found this video and thought of it as a commentary about what might happen to all polar bears, so posted it immediately to Facebook and Instagram. But he's also affiliated with a group called Caters News. And so Cater News is kind of a syndication house that works with artists to help license their content to news organizations. So when he posted it on Instagram, he included a big disclaimer, said this is managed by Cater News. It's available for license, and if you have any questions about a license, please contact Cater News. Well, Sinclair, who owns over 200 TV stations, wrote a news article on the video. They said, hey, this thing has gone viral. It's been watched more than a million times. And they used the Instagram embedding API, the little tool that Instagram gives you to embed things, dropped it into their website. When that article was published, every TV station of the 200-plus TV stations published that. And so Nicklen comes along and says, hey, no license and you embedded my video, which means you copied the whole thing and you put it on your website and I think that's copyright infringement. And he sued. You would think when a creator goes viral and he gets 200 TV stations to broadcast his thing for free, that's generally a good thing, especially when he's got a message about climate change. But I guess the poor guy has to eat and make a living, too. So unfortunately, he was-- he had that available for license and Sinclair, you're correct, did not license that. MARLEE GIVENS: Was Sinclair's posting driving content back to Nicklen's Instagram, or did all the traffic kind of stay on their side? PHILIP Burrus: That's a great question. And from the pleadings in the case, that was not clear. It certainly looked to me from reading the court documents that it helped benefit his cause by making people aware of the cause, the video, and him, which I would assume drove people back to his social media sites. But that wasn't clear from the briefs, but-- from the pleadings, rather, not the briefs-- from the pleadings. But the court did look at the economic effect when they were analyzing fair use and said it probably had a negative effect on him financially because they published it without the license. CHARLIE BENNETT: We'll be back with more from Philip Burrus after a music set. WENDY HAGENMAIER: File this set under QL737.C27D47. [MUSIC PLAYING] FRED RASCOE: You just heard "Is Chicago, Is Not Chicago" by Soul Coughing. That was a song about the importance of figuring out where something actually is. [MUSIC PLAYING] MARLEE GIVENS: This is Lost in the Stacks, and we are speaking with Philip Burrus about embedding videos and the server rule. We asked him to talk about the outcome of the Nicklen versus Sinclair lawsuit. PHILIP Burrus: So yeah, what happened was Nicklen didn't just sue Sinclair. Nicklen suit a whole host of people, and the list is several pages long in his complaint. And what happened was most of them started settling pretty quickly. They were like, oh, we don't want a copyright suit. We'll pay you the license fee. Sorry about that. Won't happen again. Sinclair decided not to. And so at this stage, after the pleadings, a defendant can make a motion to dismiss, which they did. And when you make a motion to dismiss, what you do is say, judge, assuming everything the plaintiff said in their complaint is 100% true, they still can't win and they still do not have a case and haven't made a claim, a legitimate claim because-- and what they did is they relied on this thing you call the server test, and it's a decision called Perfect 10 versus Amazon out of the Ninth Circuit, which is in California and is one of the most overturned circuit courts of appeal by the Supreme Court. So Perfect 10, because like most of the First Amendment and copyright law stems from the adult industry, the adult entertainment industry, well, Perfect 10 is an adult entertainment website, and they had a private section. And a bunch of people started posting images on other websites. The case is called Perfect 10 versus Amazon, but it's really Perfect 10 versus Google, because Amazon was involved because they were using content from Google, but Google came along and Google would crawl websites and they would grab images because they have an image search. And they would do two things with it. First of all, they would make a thumbnail of the image. So when you searched and you pulled up the Google page, you found a thumbnail of the image that Google stored in its own servers and gave to you. The second thing they would do is you could click on the link and they would do what's called framing, where a frame would come up and the actual image would be pulled in and you'd see it on your website. Perfect 10 got upset with this and they said, hey, these are all infringing images that you're showing, because people have taken them from us without permission and you have created a thumbnail and you're showing the full image to the viewer. So at the district court level when the suit was filed, there were two issues, are the thumbnails infringement and is showing the full image copyright infringement? The court came up with this test called the server test. And they looked at what was technically happening with the website and they said, hey, they're not showing or serving the image. Instead, they're inserting some code and that code pulls the image from the third party website. So Google said, we don't do anything. We just give you some instructions. And if you click on the link, it will then pull the code to your computer. You're pulling it to the computer. We're just giving you the roadmap to get there. We're not doing anything. And so the district court said, well, since you don't store a copy of that image on your server, Google, it's not infringement of the display right of copyright. They looked at the thumbnails and they said, well, you pretty much made a copy and you stored it on your server, so that is infringement. And they also looked then at fair use because Google said, OK, if that's infringement, we have a fair use defense. The trial court looked and they said, well, there are four factors to fair use, and those are the nature of the work, the nature of the use, how much of the work you copy, and the effect on the market for those works. And so they looked and they said, well, three of those factors favor the plaintiff, Perfect 10, so you're probably going to lose. So they were granted a partial injunction by the trial court. Google appealed. It went to the Ninth Circuit, and the Ninth Circuit affirmed the server test, saying, hey, if you don't store an image on a server and then serve it to an end user, you're not infringing the display right of copyright. So back to Nicklen, Sinclair came along and they said, hey, the Ninth Circuit over there on the other side of the country-- because Sinclair is in the Southern District of New York, which is under the Second Circuit-- said, they said server test. We're not doing anything but that. We took the Instagram API code, it's a couple of lines of code, dropped it into our site. That's all we did. So what happens is the end user is actually pulling that image and we're not, so we don't infringe. That's where things turned. And we can pause there, or we can talk about what the judge said in response to that argument. FRED RASCOE: Yeah, I'd like to. But it sounded like in what I read about the case, the judge was actually looking at the facts of this case and saying, you know, this use that Sinclair is making, taking this image that may live somewhere else on a different server but putting it on their own website, that's a display of the image, whereas the server test precedent was saying, that's not technically display. It lives somewhere else. The judge of this case, what seemed like he was leaning towards saying that this was an infringement. PHILIP Burrus: That's correct. So the question at hand, since this was a motion to dismiss, is the judge could either grant that motion to dismiss, in which case the case is over, or if he doesn't, we're going to go to trial, or at least we're going to get closer to a trial. And so by not granting this motion to dismiss, the parties settled really quick because Sinclair said, oh, we didn't get our motion to dismiss. It's just easier to settle and cheaper. But in not granting the motion to dismiss, the judge completely took issue with the Ninth Circuit and its server test. And Sinclair had pleaded, hey, this is kind of established law now, and they cited a Seventh Circuit decision, two other Southern District of New York trial court decisions, so district court decisions, and one case in Illinois, and I think maybe one in Texas. However, none of those had opined that the server test is the law. And so this particular judge said, having a copy on your server, which is the reproduction right, the ability to make a copy, has nothing to do with the display right. And unlike the Ninth Circuit, this judge went into the legislative history quite a bit, into the Copyright Act. And he looked in particular at the display right and contrasted that with the ability of an author to first publish a work. And there was specific congressional debate and legislative history saying the display right is not a right to first display the work, because Sinclair said he had already published it. We were just-- it was out there. But it's the right to display it any time you want. And according to 17 USC 101, which is the Copyright Act, display means to show or transmit or otherwise communicate a copy of it, either directly or by means of any other device or process now known or later developed. And he said, that's pretty broad. And so even though you only included this code, you pretty much displayed it because you transmitted a copy of it by a means developed after the Copyright Act was implemented. And therefore, it has nothing to do with whether a copy is on your server, it's whether you-- and he actually cited Merriam-Webster and a couple of dictionaries-- and he cited the definition of "show", and it's to make it accessible. And he then started to distinguish from Perfect 10. Perfect 10, he said, that case shouldn't even be construed very broadly because that was a search engine and it's a transformative use in a search engine. And Sinclair, you're not a search engine. And 2, there was a secondary step there where a user had to click on a link to see the full image, whereas in your use, any time somebody loads the page, loads the web page, a Sinclair web page, they're going to see all of Nicklen's content. So therefore, he distinguished it on the facts. He said it's not in the Copyright Act. He said they confused the reproduction right and the display right, and he completely refused to adopt it. WENDY HAGENMAIER: You are listening to Lost in the Stacks, and we'll be back with more on the copyright shenanigans of the server rule on the left side of the hour. [MUSIC PLAYING] WAYNE CLOUGH: Hi this is Wayne Clough, President Emeritus of Georgia Tech and Secretary Emeritus of the Smithsonian Institution, and you are listening to Lost in the Stacks on WREK Atlanta. CHARLIE BENNETT: Today's show is called "The Server Rule and Polar Bears on Thin Ice". The title is just heartbreaking. It's about the practice of embedding images and videos online. The online companies that rely on user-generated content, another heartbreaking phrase, like YouTube, TikTok, Instagram, et cetera, are very interested in keeping the server rule intact. It's a big part of their business having other sites embed their content. To explain, let's take as an example one Law Journal article from 2019 called, quote, "Embedding Content or Interring Copyright, Does the Internet Need the Server Rule?" unquote, by Jane Ginsburg, who is the daughter of the Notorious RBG, by the way, and Luke Budiardjo. This article calls embedded content from social media the free grist that benefits the big social media companies over the creators. Social media giants love to have their content embedded in other corporate platforms of news and entertainment without having to worry about the copyright of the original creators. However, one of the findings of this paper is that if the server rule were overturned, technology companies who rely on free appropriation of copyrighted content would have to change the way they do business. FRED RASCOE: Hey, you know, Charlie, that sounds like a dilemma for me. I mean, wanting a free and open culture and simultaneously wanting to really stick it to the very platforms of this free and open culture, while also wanting content creators to be paid. CHARLIE BENNETT: Well, you know what I say. Just burn it all down. And while you're considering that, Fred, file this set under HV6652.A5. [MUSIC PLAYING] FRED RASCOE: You just heard "No Business" by Negativland, and kind of by Ethel Merman, too. We started that off with "C30, C60, C90" by Bow Wow Wow. Those were songs about taking content. CHARLIE BENNETT: That's stealing, Fred. FRED RASCOE: No, productively reusing. Yeah, that's it. [MUSIC PLAYING] MARLEE GIVENS: Welcome back to Lost in the Stacks. We continue our interview with Philip Burrus and his analysis of the recent server rule copyright case between Paul Nicklen and Sinclair Media. MARLEE GIVENS: There is something about the commentary that-- and was it Sinclair that sort of took the Nicklen video and they created their own commentary around it? PHILIP Burrus: That's correct. MARLEE GIVENS: OK. Does that have any bearing on the decision? PHILIP Burrus: It did, but it wasn't dispositive. And the way it had bearing on the decision is when the judge looked at the fair use factors, when they looked at the nature of the use, he cited several cases that said, hey, if I write a news story about a video and use parts of the video in that news story, that's a transformative use of the work, because I'm turning art, arguably, into news for the public. And so that was a factor that weighed in favor of Sinclair for a fair use defense. Unfortunately, there were two other factors that weighed, the amount taken, which was the whole thing, and then the effect on the economics for Nicklen that favored Nicklen. The third one, on the nature of the work, was a tie. So it was the one factor that Sinclair got in their favor on a fair use defense, but unfortunately, you need you need at least two, and preferably three to have a better shot. FRED RASCOE: So as we've said, this case, this Nicklen versus Sinclair case, it was dismissed, so it didn't come to a ruling, eventually. But the signals are certainly there that a case like this could be brought and kind of can possibly overturn what we think of as that server test precedent. But it's also going to impact libraries, because I know I've been teaching in copyright for a long time, like hey, you know, linking and embedding is OK. That's not a copyright infringement. But that might change. PHILIP Burrus: Yeah, so a few things to address there. So in all of these cases, none of them have gone to a verdict. The Perfect 10 case was an issue on an injunction, and that case later settled. The Nicklen case was a motion to dismiss, and that was later settled. The Goldman case with the Tom Brady photo, that was a motion for summary judgment at the end of the trial and that case settled. There was actually a case, a subsequent case to Perfect 10 in California where one of the parties-- and I forget the two names, but one of the parties actually challenged the server test in the Perfect 10 ruling, saying that it was wrong. The trial court judge says, I'm bound since I sit within the Ninth Circuit by this precedent, but you should go and you should make that argument to the Ninth Circuit, because you may be right. For whatever reason, this party elected not to do that. He filed an amended complaint instead of going to the Ninth Circuit, and the judge dismissed the case. So that was a challenge within the Ninth Circuit to it. And as I mentioned, I looked and I didn't find anyone outside of the Ninth Circuit who says this server test is a get out of jail free card if you embed. The more prevailing view, just from my research, is if you embed and you are not the content creator and you don't have a license, you may be in jeopardy and may be at risk of a copyright infringement claim. Deep linking, deep linking around the board is held to be OK. If you're writing a paper, if you've got a website and you have a link to somebody else's page and you just include the URL and they click and they go to that link, that's universally, as I have found, held not to be any kind of copyright infringement, just because the link is so small it's not protected by copyright. But in line linking, which they do with the framing or they call it embedding, that comes with some peril if you do it and you don't have a permission. MARLEE GIVENS: So Fred and I just made a tutorial video for the library that explains that linking to library resources will not infringe copyright, thinking of like the Georgia State case with the course reserves. There are lots of professors who will just-- they've got a PDF, they just share that PDF with the class. And we're trying to encourage them to find that same article in the library and just link to it, because it's a little bit safer. And then we mentioned embedding in that video, as well. But I think that our streaming media sources that we subscribe to at the library, they're providing an embed link themselves. So that, to me, implies that it's OK for us to embed that if they're blatantly giving us the link to embed. PHILIP Burrus: So that's a great question and a great point, and I'm glad you bring it up because whether embedding is infringement is only the first question. If it is, and if that's an infringing step, you have to look and see whether there is a defense. And the primary defense in the Copyright Act is fair use. So in any of these cases where they've done the analysis of whether it's direct infringement, secondary infringement, like contributory infringement, they also look at whether there's a fair use defense. And so in the academic space-- and as we know from the Georgia State case, that primarily turned on fair use-- in the academic space, it may be very well possible that you have a fair use defense. Like I said in the Nicklen case, when they looked at fair use, it was 2, 1, and 0. Two factors favored Nicklen, one favored Sinclair, and one was a tie. | that one, one of those factors that tipped is they were commercial enterprises. He was trying to sell his content. They were trying to make money off of their news content. And that was a tip. In an academic space, you don't have that. Academic journalistic things, sometimes in it's fair use analyses, the fair use comes out completely different than if I have a commercial entity that takes the whole thing. And also, if a library resource is a section of a book, that's a different analysis than when you embed a video and you get the whole thing. You might embed a link to just the section, and that's another fair use factor. So without knowing all the facts and the specifics, it's possible that there's a fair use defense there. And Sinclair was close on fair use but didn't quite get there. And the way that Google won when they were making copies of the images and making thumbnails, even when Perfect 10 was trying to sell small pictures through phones and the court found, hey, they can just take these thumbnails for free and put them on their phones, even though they were doing that, the way it wasn't-- the way they weren't liable for infringement is they had a fair use defense. And the court said it's a transformative use, and that transformative use reversed the lower court, who found that Perfect 10 would probably win on a fair use defense. And the Ninth Circuit said, no, Google will likely win on fair use, and that's why the case settled because Perfect 10 said, well, if they're going to win on fair use, it doesn't matter if it's infringement or not. So to come full circle to the library, my advice on not linking, I think, is still sound. But in a lot of situations, depending on the factors, there's a perfectly valid fair use defense. FRED RASCOE: Well, we've been speaking with Philip Burrus of the Burrus Intellectual Property Law Group in Atlanta, Georgia. And of course, as longtime listeners know from listening to the credits, our legal counsel is provided by. PHILIP Burrus: Well, I'm happy to do it. And I want to say, too, congratulations on we just renewed the trademarks for Lost in the Stacks and whichever you're here for, we hope you dig it at their 10 year mark. Those were filed 10 years ago, and the show had been on the air for a while before those were filed. And just the 10 years has gone by in a blink, and the fact that you guys are still turning out such quality shows is amazing. I mean, it's a real tribute to the hard work you do, given the fact that you hit 10 years without a blink and you're still running. [MUSIC PLAYING] FRED RASCOE: File this set under K1420.5.C655. [MUSIC PLAYING] WENDY HAGENMAIER: That was "Jack" by The Volcano Suns, and before that, "Blank Baby" by The Presidents of the United States of America, songs about the legal mysteries of copyright and the struggles of non-lawyers trying to keep up with it all. [MUSIC PLAYING] CHARLIE BENNETT: Our show today was called "The Server Rule and Polar Bears on Thin Ice". So Marlee, Fred, it came up in that interview, but I want to ask you directly. Are you going to change the way you talk about embedding videos whenever it comes up in a library class? MARLEE GIVENS: Well, one of the things that came up in the interview was the fact that Fred and I just made a video about embedding videos, and I don't really want to redo that. So I'm just going to wait until the rule changes, and then I'll change the way I talk about it. CHARLIE BENNETT: That's very corporate of you, Marlee. FRED RASCOE: I don't want to redo it, either. I'm not going to actively promote relying on the server rule, but I'm not going to scare anyone away from it, either, at least for now. CHARLIE BENNETT: OK, that sounds legit. Wendy, as an archivist, if the server rule went away, would that change anything for you? WENDY HAGENMAIER: Great question. I'm very curious what the folks at the Internet Archive say. I wonder if it would sort make things easier, because I know there's often a lot of issues with embedded content, like capturing embedded content when you're doing a web crawl. So I don't know. I'm just going to hope for the best. Maybe it'll make things easier. CHARLIE BENNETT: Going for optimism, right on. MARLEE GIVENS: How about you, Charlie? CHARLIE BENNETT: Oh, yeah, I've given this a lot of thought and I think that we should just burn it down, destroy the net, bleach the pages, and pivot to nothingness. Roll the credits. [MUSIC PLAYING] Lost in the Stacks is a collaboration between WREK Atlanta and the Georgia Tech Library, written and produced by Charlie Bennett, that's me, Fred Rascoe, Marlee Givens, and Wendy Hagenmaier. MARLEE GIVENS: Today's show was edited and assembled by Fred, embedded in his home office. WENDY HAGENMAIER: Legal counsel and some old AC/DC cassettes from the glove compartment were provided by the Burrus Intellectual Property Law Group in Atlanta, Georgia. FRED RASCOE: I'm going to play those cassettes until they're just bare. Special Thanks to Philip for being on the show and for helping us trademark Lost in the Stacks 10 years ago and for being our attorney and advising us to drive a top speed at all times. CHARLIE BENNETT: And thanks, as always, to each and every one of you for listening. MARLEE GIVENS: Find us online at lostinthestacks.org, and you can subscribe to our podcast pretty much anywhere you get your audio fix. WENDY HAGENMAIER: Next week's show is a rerun, and we'll be back with the a episode a week after that. FRED RASCOE: Time for our last song today. And yeah, OK, we know just because something is, quote, "on the internet" doesn't mean anyone has the right to use it in any way, but it also doesn't mean that no one can use it in certain ways. That's just sound, essential logic to use when you're faced with a copyright situation on the internet. So let's close with "On the Internet" by Essential Logic, right here on Lost in the Stacks. Have a great weekend, everybody. Charlie, did you like that one? CHARLIE BENNETT: Fred, I love it when there's just an organic choice of music that comes up organically. [MUSIC PLAYING] SPEAKER 3: (SINGING) Cruising in cyberspace--