Intellectual Property

Links And Hijinks: Breitbart News And The Electronic Frontier Foundation Team Up To Wage Copyright War On Artists

Ground zero in the latest battle of Big Tech versus the arts community.

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Why on earth would the non-profit Electronic Frontier Foundation link arms with far-right-wing propagandists Breitbart News to wage war on an independent artist who did nothing more than seek compensation for the unauthorized use of his photograph? As most things do, it comes down to money.

Backing it up for a moment: The sage drafters of the Copyright Act set out protect artists by ensuring that nobody profited from the unlawful and unauthorized use of their creative content. They did so by enumerating a number of discrete rights that accrue to creators and then setting forth a damages paradigm that both compensated the creator for his or her lost profits and disgorged from the infringer any profits that resulted, directly or indirectly, from the unauthorized use.

Basically, if one obtains an economic benefit through the use of an artist’s work, one should compensate that artist. With that in mind, we turn to the latest unfounded hysteria being fomented by EFF and Big Tech interests — those interests that own and operate the software and hardware and social media platforms and websites and advertising sales teams and marketplaces that make the internet so very profitable. In order for Big Tech to maximize those profits, you see, the artist must be marginalized and removed from the economic equation.

But the internet itself has minimal artistic value — it’s just a series of interconnected hollow tubes inhabited by a few dancing babies and a vaguely anthropomorphic, animated paperclip — and thirsts for original and compelling content such as photographs, videos, and legal commentary columns. The bummer for Big Tech, though, is that this content must be created by artists, and artists must be compensated in order for them to afford their bowls of gruel, which are necessary to provide energy for further content production. This compensation requirement is anathema to Big Tech, which makes more money if the laws allow the unbridled exploitation of all art and content without the consent of, or payment to, the artist. And they don’t often miss an opportunity to wage war on any artist willing to stick his neck out to claim that a website or tech company is using his or her art without permission. Just ask Mr. Justin Goldman, whose case has become ground zero in the latest battle of Big Tech versus the arts community.

The hubbub arises in connection with the most straightforward of claims. Goldman, a photographer, created a photograph of athlete Tom Brady. Breitbart News, a particularly unpleasant website, and a number of other relatively sophisticated for-profit websites found Goldman’s photograph online and, without his consent, published and displayed it on their websites, each of which make money through advertisements and other ancillary revenue streams. So far, a run-of-the-mill violation of Goldman’s  right to display and broadcast his work. But, here is where it gets weird.

Breitbart and the other (alleged) infringers, supported by the EFF as amicus curiae, are arguing to the court that the blatant, for-profit, unauthorized publication of Goldman’s photograph should be excused because of the technical process through which the defendants published the photograph to the public.

To fully understand this absurd techno-argument, it’s important to understand the different ways in which a website can publish content. The website can directly upload and broadcast its content to the public via software and a server. Or, a website can publish content to the public through embedding, which involves placing HTML code on their website so that the website displays content — such as photographs and videos — from another website.

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Embedding, also called “inline-linking,” has nothing to do with deep links, those bolded, underlined URLs that we find on websites and which, when clicked upon, take us elsewhere on the internet. Such links are not at issue in the Breitbart case.

Instead, what is at issue is Breitbart, et al.’s embedding of third-party content so that it can be viewed and appreciated directly on their websites. Now, when you or I visit a website to view a photograph or a video, it makes no difference to us as viewers whether the content is directly published or published via an embed — we view and appreciate the exact same content, and the technical process by which the material is published is immaterial to our experience. And the website gets the same benefits from embeds as it does from direct publication — those sweet clicks, views, and impressions.

Yet, falling just short of bellowing “tell those copyright holders they can pry these links from our cold, dead hands,” the infringers are claiming that they should have the legal right to post copyrighted content, like photographs, without the consent of the author because the photographs are not direct-published but are instead published via an “inline-link” or embed. The argument, in essence, is that for-profit sites should be able to publish whatever they want without the consent of the artist so long as the photograph or video is published via an embed. This argument has no merit, though, because the end result is exactly the same to the viewer, and the viewer is the basis for the site’s profits.

Undeterred, Breitbart and company cite a decade-old 9th Circuit case, Perfect 10 v. Amazon, as providing to them an escape hatch. This case, though, involved not full photographs published on websites, but thumbnail images that appeared in search engine result pages. It was also decided in 2007, when courts were in the early stages of grappling with all things tech, as reflected in their need to explain in the Perfect 10 opinion that the “Internet is a world-wide network of networks … all sharing a common communications technology.” At the time of this decision, the Court was wary of restricting online activity, and this case may have come out different had it been decided today. In any event, the facts are easily distinguishable from Mr. Goldman’s situation.

Indeed, Judge Katherine B. Forrest has already rejected this attempt to evade liability, at least at the motion to dismiss stage. She distinguishes Perfect 10 quite easily and ably, noting that, unlike the Perfect 10 images, the Goldman photograph “is shown in full” and was “selected for prominent display on the website.” In other words, a totally different set of facts.

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But Judge Forrest’s initial rejection of the wholly unsound legal position has not stopped Big Tech and EFF from attempting to drum up some public alarm. Indeed, the “they’re coming for our links!” false narrative is already showing up in articles and opinion columns, even washing up on the sanctified shores of Above the Law.

The EFF’s involvement in this basic case has also raised a few eyebrows. EFF, which presents itself as promoting internet “freedom,” appears to be, in practice, one of the most virulently anti-artist organizations in the game today. And nobody bothers to conceal this fact – Google, which has done more than most in Big Tech to fight against artists’ rights (even recently going so far as to censor an artists’ rights video on YouTube) poached the long-term leader of EFF to direct Google’s online copyright campaigns in hopes he can do directly for Google what he once did indirectly at EFF — increase its advantage over artists and creators of content.

But, while EFF’s positions, which seek to reduce the value of music, photography, film, and other content, have generally found public support, mostly because people like free stuff, the tides are a-turning. This most recent offensive comes at a time when the public’s trust in Big Tech is at an all-time low. It seems that while the public was once content to follow the lead of their online overlords, the recent controversies arising from the internet-without-accountability approach, such as the contamination of the presidential election, and a wave of investigative pieces detailing the monopolistic powers of the Big Tech giants, have John Q. Public giving Google, Facebook, and the rest a contemptuous side-eye.

And the anti-artists’ rights campaign being waged by EFF and Big Tech in the Breitbart case is not going unanswered. The American Society of Media Photographers and other artist-related groups have lined up as friends of the court in support of the photographer. While their resources pale in comparison to those of EFF and Big Tech, they have the stronger position thanks to those sage drafters of the Copyright Act. If Breitbart and their Big Tech brethren want to make billions of bucks off of artists’ content, it will simply have to compensate those artists.

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.

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