Intellectual Property

FRAME UP! A New Way To Swipe Copyrighted Content

What exactly is framing? Learn all of the important facts you need to know to avoid infringement.

By  
on

Framing? Not quite…

The ever-gaping, data-stained maws of the content machine yearn — no, demand — to be fed. But this is a hunger that cannot be sated, no matter how many bylined chunks of creatively packaged news and entertainment we stuff down its corrugated throat. Still, those pressing the buttons and pulling the levers on behalf of the players in the content wars push on, hitting their daily post and traffic counts and staring balefully out rain-streaked windows.

The bringing into being of this incessantly rushing stream of content has a real cost, a reality that is starting to sink in across the digital landscape. The business model whereby one registers a zany URL and starts posting articles comprised of photographs and stories taken from elsewhere on the web is on the wane. In these days of shrinking advertising budgets and increasing labor expenditures, a number of sites, mostly in the news and entertainment areas, have recently shuttered their virtual windows and closed up shop. Rest in digital peace, DNAInfo, Gothamist, and all the other ‘ist sites.

It is presumed that the bean counters at these sites looked at the cost of creating new content — paying writers, editors, photographers, videographers, and so on — and the potential return on that investment, and concluded that the game wasn’t worth the candle.

For those carrying on, the battle for creative material continues to be waged, with web sites developing ever more creative ways of not only developing content, but also of copying it from third parties in a way that circumvents the protections of the Copyright Act. Creators gotta create, and infringers gotta misappropriate. And when one loophole clamps shut, the infringers will cast their beady little eyes elsewhere.

When we last addressed this issue, we ventilated the “embedding” approach to content jacking, which consists, in general terms, of including code on one’s site to display to its viewers a video or photograph that is posted on a third-party site.

As it is the display, and not the provenance, of the material that counts, the site that displays the infringing work is responsible. The Copyright Act is unequivocal in this regard, with 17 U.S.C. § 101 noting that “[t]o display a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process.” This language, which includes in the definition of “display” the showing of a copy by “any other device or process” is broad and would certainly sweep embedding into its purview.

Sponsored

Framing, the most recent parry in the battle between those who make and those who take, would also fall within this purview. This week, Judge Jane J. Boyle the Northern District of Texas sized up the situation and found as such in a case entitled The Leader’s Institute, LLC v. Robert Jackson; et al. Her ruling notes that framing, despite the infringer’s attempts to dress it up in fancy tech trappings, was still copyright infringement.

So, what exactly is framing? It is a process where one site doesn’t display only another site’s video or photograph (as happens with embedding), but displays the entirety of that third-party site. Generally, when you surf on over to a particular website, you are seeing a display that results from the data that that website proprietor created and stored on its computer. But, if the website proprietor wants to engage in some legal hijinks, it can write code that directs your computer, upon visiting its site, to display content from someone else’s website as if were the proprietor’s. So, when you punch in www.kwazycontent.com and are surprised when the page loads and you see within that site’s display the splash page from CNN or National Geographic or wherever — you’ve been framed.

The technique, which includes directing viewers’ browsers to view third-party content, is wildly illegal for rather lucid reasons. As Judge Boyle deftly noted, the process engaged in by the infringer “impermissibly displayed the works to the public[]” in violation of Section 106(5) of the Copyright Act. In doing so, the infringer, who wanted for its own reasons to post the creator’s content, which consisted of material about bikes and team-building and where the twain meet, “displayed [the creator’s] content as if it were its own.” Thus, infringement.

In defense, and per what is becoming a tired routine, the infringers booted up Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007), a favorite case amongst copyright infringers. It is so favored due to now archaic language that infringers argue makes “actual possession of a copy a necessary condition to violating a copyright owner’s exclusive right to display her copyrighted work.” Judge Boyle states expressly that she would disagree with this proposition if it is a proposition at all.

In the end, the court kicks the framing argument to the curb, noting that the Copyright Act makes it clear that “to display a work publicly, a person need only transmit or communicate a display to the public.” And, framed or not, a website’s post of third-party content is most certainly a display to the public.

Sponsored

Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

Topics

, ,