Sony Artisan Paul Nicklen, a nature photographer acting upon and deciding to indulge his ignorance, greed, and stupidity, declared war on our freedoms by filing the wrong lawsuit against the wrong person(s), Sinclair Broadcast Group, and to my amazement, has won. This decision, without challenge, threatens the nature of the internet itself. Long story short, Paul Nicklen’s actions, in complete disregard to our freedoms, along side the decision of Judge Jed Rakoff of the Southern District of New York, could change the face of the internet, forever, by making any internet sharing of any copyright content illegal FOR EVERYONE. Segregating the entire internet by completely killing off the ability to share and network using any kind of embedding, IFRAMEing, etc. (the most basic forms of consensual networking). Good Bye Google, Bing, Yahoo, Duckduckgo, Twitter, Facebook, Instagram, YouTube… basically any website whos life blood is sharing information.
Paul Nicklen took a short video of a starving polar bear and posted it to Facebook and Instagram in 2017. PetaPixel, a photography and camera news website featuring news, reviews, tutorials, guides, and more, published this clip with the permission from National Geographic, but neither Nicklen nor National Geographic provided permission to the Sinclair Broadcasting Group, which also embedded the Instagram post to its own sites and promoted the article with a screenshot taken from the video. The source Sinclair asked the court to dismiss Nicklen’s complaint arguing that embedding of a video is not copyright infringement and therefore the publication of the video is fair use. Even though the publication is in fact, an embed, meaning Sinclair’s servers asked permission to facebook to retrieve the source and relay it to the user no different than if it was clicked on from the server (Instagram) itself, Judge Jed Rakoff disagreed, as Sinclair did not simply embed the Instagram post, but also used a screenshot from the video to promote the article, giving the prosecutor more views and clicks.
So far, as I understand, the main issues related to the case is that, the defendant
- 1. embedded a post on a platform that gave opted in permission to embed said content
- the material in question is the property of facebook as stated in their terms in which the prosecutor agreed to
- the embedded content was stored, shared, and delivered by facebook and not the defendant no different as if it was viewed from Instagram
- 2. created a thumbnail for the post using a piece of said freely viewable content to promote it
Furthermore, Rakoff says that copyright is “defined” by the display of work as showing “a copy of it, either directly or by means of a film, slide, television image, or any other device or processor, in the case of a motion picture or other audiovisual work, to show individual images non-sequentially.”
(notice how an embed is not listed as it is a direct broadcast from the approved source, not a copy)
Combined with the plain meaning of the word “show,” the “defendant violates an author’s exclusive right to display an audiovisual work publicly” if a defendant “causes a copy of the work, or individual images of the work, to be viewed, whether directly or by means of any device or process known in 1976 or developed thereafter.” Rakoff further added that “the exclusive display right set forth in the Copyright Act is technology-neutral” and is “concerned not with how a work is shown, but that a work is shown.”
(shown FROM THE DIRECT SOURCE that the author set) This is not infringement if the author is the one presenting it as it was in this case.
Sinclair argued that because the content was stored on another server, embedding that content was not the same as outright displaying it.
(This is correct!) You have the digital permission to not only link it, but to deliver the media from the EXACT SAME SOURCE in which the media is hosted from.
(You’re a Moron)
He also found that because Sinclair used a still image of the video regardless of whether the user clicks to play the video or not further added to the case of copyright infringement.
As per my opinion, this Judge seems to have no clue on the workings of the internet. Platforms have power to grant permission by granting features and functions to its users dynamically without the need of 3rd party intervention. If the internet required manual permissions for everything that is done on it, nothing would ever get done. Imagine every time someone wanted to SHARE your post/content by a tweet, retweet, embed, IFRAME, post, repost, message, IM, DM, or any other form of sharing your public content, you had to manually confirm every communication back and forth. It would be exponentially impossible to manage it all. It is the platforms job and responsibility to do this, anything left un-resolved is perceived approved by default. Facebook only needs to make posting content have the option for the user (giving users the power? what a concept…. #prometheus) to mark the post as sharable or not.
In this case, so far, as the facts made available to this moment, since Facebook gave the defendant access to embed, and hosted the delivery method for the shared content, this case should have been thrown out as illegitimate. The infringement stands to be on the shoulders of the prosecutor since he knowingly posted his content on a platform the gave permission to share a copy of the content and host the means of the embed.