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Questions & Answers — Copyright Column

by | Mar 18, 2022 | 0 comments

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Column Editor:  Will Cross  (Director of the Open Knowledge Center and Head of Information Policy, NC State University Libraries)   ORCID: 0000-0003-1287-1156

Against the Grain v34#1

QUESTION:  An academic publisher asks, “Are there any copyright issues with linking to or embedding materials in a digital publication?”

ANSWER:  One of the bedrock ideas in U.S. copyright law is that linking to resources, rather than copying them, is generally lawful and safe.  After all, simply pointing to a resource on the open web arguably does not implicate any of the exclusive rights granted to a rightsholder and would seem to be an overwhelmingly strong fair use claim as well.  Outside of knowingly sharing a link that led to clearly illegal materials, the legal risk of linking is minimal.

The question of embedding materials into a new resource can seem more complicated technically and economically, and there has been a somewhat open question as to whether it was also legally different as well.  The two leading cases — Kelly v. Arriba Soft, 336 F.3d 811 (9th Cir. 2003) and Perfect 10 v. Amazon, 508 F.3d 1146 (9th Cir. 2007), focus on search engines but are generally understood to support the idea that both linking and embedding are permitted under U.S. law.  Both of those cases recognized the legal principle — sometimes called the “server test” that, because the copyright-protected content is stored on the plaintiff’s server rather than that of the linking or framing person, there is typically no infringing “copy” made by the defendant.

Because both of those cases came out of the Ninth Circuit and were not decided by the Supreme Court, however, some doubt remained and a 2018 case dealing with a tweeted photograph of recently-retired NFL quarterback Tom Brady seemed to suggest that the law was not so settled after all.  In Goldman v. Breitbart, the Southern District of New York found that a webpage publisher who embeds a tweet containing a copyrighted photo is “displaying” the photo within the meaning of the Copyright Act.  Significantly, this case explicitly rejected the server test in favor of a much broader reading of the exclusive right to display a work protected by copyright.

This question was raised again recently in a case where a group of photographers sued the image-based social media site Instagram for providing a tool to embed photographs such as theirs.  In Hunley v. Instagram, the Northern District of California considered whether the server test was still good law, especially when applied to services beyond search engines.  Writing for the court, Judge Charles Breyer reaffirmed the server test as grounded in the “plain language of the statute” and thus applicable in all cases not just the narrow context of search engines, which the plaintiff photographers had argued reflected a “highly fact-driven … policy judgment.”  Instead, the court made it clear that, at least in the Ninth Circuit, because services like Instagram do not store the images and videos, they do not “fix” the copyrighted work in any “tangible medium of expression.”

As scholars, publishers, and educators, we should always be careful about reliance on links and embedding for a variety of practical and ethical reasons.  Linkrot remains a significant issue.  A recent study found that 50 percent of the links embedded in Supreme Court opinions since 1996, when the first hyperlink was used, no longer worked.  Similarly, 75 percent of the links in the Harvard Law Review no longer worked.  Linking out also creates challenges to accessibility and leaves materials vulnerable to recontextualization — as when a link included in an opinion by current Supreme Court Justice Samuel Alito was changed to load a website displaying the message: “Aren’t you glad you didn’t cite to this webpage … If you had, like Justice Alito did, the original content would have long since disappeared and someone else might have come along and purchased the domain in order to make a comment about the transience of linked information in the Internet age.”  So, there may be many reasons not to rely on linking.  But for now, at least, we can rest easy on questions about copyright.

QUESTION:  A researcher asks, “Am I bound by the terms and conditions of a website I use as part of my research and teaching?”

ANSWER:  The obligation to comply with the terms of service or terms and conditions of a website illustrates the way that copyright and contract law come together, particularly when working online.  A recently released resource from the Pennsylvania State Libraries’ Office of Scholarly Communications and Copyright does an excellent job of walking through the issues:  https://psu.libanswers.com/faq/362457.

As described in that resource, website terms of use are generally designed as a contract between the user and the entity running the website but those terms don’t always create a binding contract and some terms may not be enforceable even if the terms themselves are generally binding.  As a result, the document describes the likely consequences of violating website terms, starting with a suspension or ban from the site itself, which does not require any legal basis since most websites can choose who is and is not allowed access.

Significantly, these consequences may impact not only the individual user but an institution as well.  Particularly for library-licensed databases and resources, institutions may be expected to take steps to remedy unauthorized access and use and vendors may turn off access for the entire institution.  In some cases, a website owner or vender might also choose to bring a lawsuit.

As this resource is careful to note, however, the consequences for breaching a contract are different from the consequences of violating copyright, which can carry statutory damages which range from $200 per work for “innocent” infringement to $150,000 per work for “willful” infringement regardless of the actual harm done to the rightsholder.  In contrast, contract damages are typically limited to actual damages caused by the breach.  As such, the financial risk of violating terms of use can be very different from infringing copyright.  One risk that users do not need to fear is violating the Computer Fraud and Abuse Act, a once-common concern that the Supreme Court rejected in the 2021 decision in Van Buren v. United States, 593 U.S. __.

Scholars and educators concerned about violating terms would be wise to consult the PSU site, which includes links to several other useful resources related to the application of terms as well as remedies for violations.  As the resource notes, “It is generally a good idea to follow the terms of use … of websites you use.  In some cases, following terms of use would make vital research or teaching impossible, so it is helpful to consider whether following them is truly necessary.”

QUESTION:  An archivist asks, “Is VHS considered an obsolete medium so that librarians are free to make preservation copies?

ANSWER:  As has been discussed in past columns, libraries are permitted to take a variety of steps in order to meet their mission based on the copyright exceptions described in Section 108 of the Copyright Act.  This is the basis (though not the only legal justification) for core activities including interlibrary loan, creating personal copies for patrons, and creating preservation copies when materials are, in the language of the statute, “damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete.”

The statute specifies that “a format shall be considered obsolete if the machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.”  As individual formats from the phonograph to the 8 track player fall out of use, libraries have attempted to understand when a format is legally “obsolete” and thus eligible for copying under 108(c). 

This question about obsolete formats has often centered on VHS tapes.  The baseline question about the VHS as a format was answered by a report from the Academic Libraries Video Trust (ALVT), which documented the end of VHS manufacturing in 2016:  www.videotrust.org/background-alvt.  As the report makes clear, however, “a library cannot simply begin digitizing all of their VHS tapes.  Section 108 requires that, prior to duplication, a reasonable search be conducted to determine that a non-obsolete, unused copy of the title is not available at a fair price.”  In order to support this effort, ALVT offers a catalog (www.alvt.videotrust.org) that includes search information related to thousands of VHS holdings in library collections that can be leveraged by other organizations to assist in their VHS preservation efforts.

In addition to this information about the availability of an unused VHS copy, librarians considering digitization based on Section 108 should also remember that the content on a VHS cassette is routinely different from the content on a DVD or other source.  It might be edited or framed differently, and even worn and faded.  The specific “work” at issue on the VHS may be sufficiently different from the version of a similar title available on DVD, so that the DVD version is not a genuine replacement.  In light of the format’s obsolescence and the often-unique materials stored on VHS tapes, librarians have a professional obligation and the legal backing to preserve the cultural record in a variety of situations.

QUESTION:  A legal scholar asks, “How can I research copyright records of registration?”

ANSWER:  Despite the clear need to understand which works are and are not protected by copyright, it remains surprisingly challenging to identify which works have been registered and renewed where required under the pre-1976 rules.  While the Copyright Office keeps records about materials which have been registered and renewed, access to those records has historically been limited to those who are able to come to the Office in Washington D.C. or who were able to pay for a professional to research on their behalf.  Some external services like the Stanford Copyright Renewal Database (library.stanford.edu/collections/copyright-renewal-database) offer additional support, but getting clear answers about whether a particular work is still under copyright remains challenging, as does accessing historical information about copyright records that has been used by scholars in a variety of academic fields.

In recent years, however, the Copyright Office has taken great strides to modernize access.  The Copyright Public Records Portal (www.copyright.gov/public-records/) provides resources to search the COs online records, learn about their searching and retrieval services, and view educational videos and materials.  In February, the Copyright Office also launched the first release of the digitized Copyright Historical Record Books Collection.  This collection is a preview of digitized versions of historical record books that the CO plans to incorporate into its Copyright Public Record System (CPRS), currently in public pilot at:  www.publicrecords.copyright.gov.  The collection will eventually include images of copyright applications and other records bound in books dating from 1870 to 1977.  As these projects continue to develop, they will be a tremendous resource for rightsholders and users to understand the copyright status of works as well as for historical research.  

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