Copyright Law vs. Copyright ExpectationsMay 26, 2011
- Here’s how FunnyJunk.com’s business operates:
- Gather funny pictures from around the internet
- Host them on FunnyJunk.com
- Slather them in advertising
- If someone claims copyright infringement, throw your hands up in the air and exclaim “It was our users who uploaded your photos! We had nothing to do with it! We’re innocent!”
- Cash six figure advertising checks from other artist’s stolen material
(Funnyjunk and The Oatmeal are currently in flame war (see the bottom of The Oatmeal post). Also, Funnyjunk apparently posted this response but it’s gone from the site now and is now hosted on yet another image hosting site. The comments in this reddit thread are also worth reading.)
It’s fascinating how similar these arguments are to the arguments made by Viacom in its argument against YouTube:
YouTube purposefully (and successfully) sought advertising revenue by facilitating performances of popular copyright-infringing material….There is no dispute that, for years, YouTube’s policy and practice was to take no action to remove infringing material unless and until the copyright owner provided YouTube with a DMCA-compliant take-down notice and then to construe such a notice narrowly to retain infringing clips not specifically identified.
PK has long argued that sites that host user-generated and user-submitted content ought not be saddled with undue burdens that make it difficult for them to operate—just as YouTube would never have gotten started if it had to run every uploaded clip past a team of lawyers, most of the myriad image-hosting sites on the Internet, from imgur to Flickr, couldn’t function if they had to verify beforehand the licensing status of every image they host. Surely the same rules ought to apply to everyone regardless of sympathetic they are—Matthew Inman has the same right to control the use of his works as Viacom, and Funnyjunk shouldn’t be held to a different standard than YouTube. If you’re thinking about what the right rules about hosting sites should be, you shouldn’t let your judgment be clouded by how likable you find the actors in different situations. (The rules today are both simple and complicated. They’re simple to state: As long as the operators of the site don’t actually induce copyright infringement, and as long as they comply with the DMCA’s various requirements, they’re not liable. But what this actually means is the subject of ongoing litigation, and of course the right rules might be different.)
Of course, it might be that applying any given set of rules to Funnyjunk and Veoh would get you a different result in each case, because the different services behave differently. And Inman has pointed out differences. He seems skeptical, at least, that many of his comics actually were uploaded by users of the site. Indeed, the fact that his credit and URL are often photoshopped out of the images doesn’t look good—are normal users actually doing that? Why? He’s also peeved at Funnyjunk’s advertising.
But this last point points to the difference between what copyright law is and how people think it should work. People tend to get angry when people make money off of someone else’s work, but the law is ambiguous. DMCA safe harbors don’t apply if the site operator “receive[s] a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity,”. But that doesn’t mean there’s a flat bar against advertising against user-submitted content that might be infringing. If there’s advertising on every page of a site, money made from advertising on one page that contains infringing material isn’t necessarily “directly attributable” to infringement.
Plus, it’s not always clear if the money that the third party makes off of content is money that the copyright owner otherwise would have made. A recurring problem is when works licensed under a noncommercial Creative Commons license are used for commercial purposes. In some of those cases the creators simply would not have given permission to use the works commercially if they had been asked—it’s not as if they actually lost any money based on the unauthorized commercial use of their works. It’s just that when someone is making money off of an unauthorized use, it seems more obnoxious. Thus, while the problem with third parties making money from unauthorized content is sometimes a money issue (they might be taking away your customers or your ad impressions), very often it’s a non-financial matter of authorial control.
And of course, you’re not allowed to infringe copyright as long as you give proper attribution or credit. Yet many people (look through that reddit thread again) cite that as one of the foremost issues.
I don’t know what the right answer is in the Funnyjunk/The Oatmeal situation. Whether or not a site is complying with the DMCA (according to some commenters Funnyjunk doesn’t even qualify because it doesn’t have a registered DMCA agent) or is “inducing” is very fact-specific.
But maybe the fact that people’s intuitive sense about what’s right and wrong about the use of works on the Internet doesn’t fit neatly with the law as it stands is further indication that copyright law needs to be overhauled. Maybe attribution should be relevant to liability. Maybe there needs to be more clarity on the right line between commercial and noncommercial uses. And while I’m skeptical that copyright law should be substantively different for “little guys” vs. “big guys,” certainly the legal process ought to be more understandable and available to people without teams of lawyers.
Situations like this one are important to consider. Online copyright issues aren’t always David vs. Goliath (or Goliath vs. Goliath) affairs. Many important issues involving smaller players will never make it to the court system and set legal precedents, but they’re important in setting societal norms and expectations about the use of content. Lots of independent creators like Matthew Inman are faced with situations where neither the law nor what is actually happening is entirely clear. By the same token, many entirely legitimate online services face legal uncertainty. One way to make the law better and more predictable might be to re-align it so that it matches peoples’ expectations. And sometimes the best way to determine what those expectations are is to pay attention to situations like this one and not just the high-profile cases making their way through the appellate process.
About John Bergmayer
John Bergmayer is Legal Director at Public Knowledge, specializing in telecommunications, media, internet, and intellectual property issues. He advocates for the public interest before courts and policymakers, and works to make sure that all stakeholders — including ordinary citizens, artists, and technological innovators — have a say in shaping emerging digital policies.