Monthly Archives: June 2019

The Server Test and Copyright Infringement

In a recent article on Slate, Lance Koonce talked about his recent experience of having a video he tweeted of the June 10th helicopter crash in NYC go viral. In his article, he referenced his experience as a lawyer defending against charges of copyright infringement for using an embedded tweet. 

Technologists often accuse judges and legislators of not understanding science and technology. I don’t disagree with this charge; I’m in the middle of writing something about mistakes made even at the Supreme Court level. 

However, I think technologists sometimes fail to understand the human element in how people actual use and perceive the technology. 

The particular case Koonce references, media sites embedding a tweet with picture that was originally taken by Justin Goldman. The issue partially depends on what’s known as the “Server Test,” which basically says that you can commit copyright infringement if you copy an image and place it on your server. If instead, you merely provide a link to that image on someone else’s server, you’re in the clear.

Let’s say that I want to post image that I don’t have the rights to use, like this image of a Wikipedia server, which I copied from Wikipedia1I’m actually allowed to use this image. A significant portion of the images on Wikipedia have some version of Creative Commons license, which allows others to use them. In this case, the image has CC BY-SA license, so I can use it as long as I give credit (the image is by Victor Grigas) and allow sharing of the image. Unlike many sites, Wikipedia also explicitly allows hotlinking to their images; so I’m not even violating the terms of use by linking to the image on their site..

I could copy that image, upload it to the server that hosts my website, and post it from there. It might look something like this:

Wikimedia Foundation Server

Image stored on my server

Alternatively, rather than copying the image, I could simply link to the image on the website of original owner. And then it would look like this:

Image embedded by linking to Wikipedia

So, the reader experienes no difference. But as far as I can tell, they’re treated very differently by copyright law, at least according to the ninth circuit. The more recent court decision in the second circuit comes to a different conclusion.

Now, the actual Second Circuit case, Goldman v. Breitbart News Network, LLC, involved an embedded tweet, so it would look something like this:

Image on Twitter, in an embedded tweet

The tweet at the center of this case wasn’t made by Goldman himself, but by another person who didn’t have permission to use the image, although that’s not directly relevant to my concern about the server test.

So I have three version of the exact same image shown on this page. The first two look exactly the same to the reader. The server test makes it awfully easy to use another creator’s work, not credit them, and be legally okay. That doesn’t seem right.

Am I missing something? I certainly respect a lot of the people who support the server test, but it doesn’t actually seem to reflect how people actually view a website.

Footnotes   [ + ]

1. I’m actually allowed to use this image. A significant portion of the images on Wikipedia have some version of Creative Commons license, which allows others to use them. In this case, the image has CC BY-SA license, so I can use it as long as I give credit (the image is by Victor Grigas) and allow sharing of the image. Unlike many sites, Wikipedia also explicitly allows hotlinking to their images; so I’m not even violating the terms of use by linking to the image on their site.
Carrie Buck and Emma Buck, 1924

Eugenics and Abortion

In an earlier blog post, I mentioned Clarence Thomas’s misuse of Adam Cohen’s book, Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck. Thomas had essentially reversed the connection between eugenics and abortion. When this book first came out a few years ago, I had wanted to read it, but never did, so Thomas’s misleading use of it prompted me to actually purchase and start reading.

Although I’m only about a third of the way through it, it’s as good as advertised, and anyone interested in eugenics and its implementation in the US should pick it up. Especially striking to me is the kind of people who were serious promoters of eugenics – that is, progressives and the scientific establishment. This hits me at the core of who I am – a progressive supporter of science!

I first read about this issue when I was just a kid and read this Washington Post article, from February 1980, by Sandra G. Boodman and Glenn Frankel.

They told me the operation was for an appendix and rupture

Their article talks about the more than 7,500 people in Virginia sterilized, often without consent or even knowledge of what was happening to them.

The most moving part of the article are the quotes from Doris Buck Figgins (younger sister of Carrie Buck), who tried for years to have children, not knowing she was sterilized without her consent. “’They told me the operation was for an appendix and rupture,’ said Figgins.”

Sterilizations in Virginia continued into the 1970s. 

To overturn Buck v. Bell, the ACLU and the ACLU of Virginia filed a class action lawsuit to have the court declare that the sterilization program violated the victims’ constitutional rights and prohibit further sterilizations without informed consent.

Connection between Eugenics and Abortion Today

Flash-forward to today and the government still tries to control women’s reproduction. While the mechanism has changed (i.e., forcing women to give birth rather than sterilization), the elitism and misogyny hasn’t. As I mentioned earlier, Clarence Thomas reverses the connection between eugenics and abortion; he claims that the pro-choice movement is like the eugenicists of the past, but it’s really the opponents of abortion who are trying to control women’s bodies.

To me, that’s the most important part of the story. We still need to fight these attempts to pass laws that would control a person’s very body.

Brain

Using your brain

Building on the “brains” part of my earlier post, one of the issues that I find so striking is the meaningless of a ban at six weeks and what this reveals about the lack of knowledge of the world. 

I can imagine a hypothetical reasonable person who thinks about a six-week abortion ban and says, “six weeks…that’s plenty of time to realize you’re pregnant, decide what to do, and then have an abortion if you want.”

But, of course, people don’t know they might be pregnant on day 1. Pregnancy is measured from the last menstrual period, and it’s a missed period that may be the sign of pregnancy. So, that’s four weeks in. 

“Okay,” my hypothetical reasonable person says to themselves, “that still leaves two weeks to think about what to do and get an abortion.” 

But most people don’t discover they’re pregnant until 4 to 7 weeks. For many women, under completely normal circumstances, six weeks will pass before they even try to determine if they are pregnant. 

Some women may not keep track of the time between their periods, especially if their periods don’t happen in a precise 4-week cycle. On average, a woman gets her period every 24 to 38 days (38 days happens to be just short of 6 weeks).  Irregular periods are particularly common for younger women, or women who have recently stopped using the pill.

“Gee, so maybe six weeks doesn’t actually mean a lot for many people who might get pregnant, but I’m going to ignore that and believe that women will know at four weeks,” goes my ever less reasonable hypothetical person. “So they can still go get an abortion.”

If only it were that easy. Because of restrictive and unnecessary state laws, someone seeking an abortion may need multiple trips to obtain an abortion. There are 27 states that require a waiting period between counseling and an abortion; 14 states require that counseling be in-person and be separated from the actual abortion, necessitating two separate trips.

And those trips may be to a distant facility, because TRAP laws and other pressures have resulted in the closing significant numbers of abortion facilities. Kentucky went from 9 clinics to 1; Louisiana went from 17 to 3; Ohio went from 45 to 10.

So, for many, a six-week abortion ban is as good a complete ban. In order for this not to be true, depending on where one lives, they must:

  • Realize they’re pregnant
  • Determine what to do, often in consultation with loved ones
  • Get the resources to pay for the abortion as well as the travel to a perhaps distant facility
  • Take time off work, perhaps twice
  • Travel twice, or stay overnight
  • Actually have the abortion

Of course, it could all be a cynical ploy to appear to do something other than a total ban while not explicitly labeling it so.

Abortion Rights: March for Women's Lives -- April 2004 "Washington Monument"

What to do about the assault on abortion rights

I’ve been wondering what can I do to support reproductive freedom and abortion rights in light of the terrible, vile laws that have been passed recently, and I’ve come up with three prongs:

  • Your money
  • Your words
  • Your brain

Use your dollars

As is so often the case, money always helps. It costs a lot of money to fight these laws and to support individuals directly affected by them.

Donate to those organizations on the frontline of the abortion fight. Certainly, that includes the ACLUPlanned Parenthood, and NARAL. But also include those smaller organizations that may not get so much publicity, such as the Yellow Hammer Fund, which directly supports those seeking care at one of Alabama’s three abortion clinics, or ARC-Southeast, which helps individuals travel to Atlanta to get reproductive services.  The National Network of Abortion Funds lists funds in many US states as wells as some supporting women outside the US.

But we can also work to reduce the flow of money to politicians who advocate and pass these laws.  So, share your concern with those whose dollars are going to those who oppose abortion rights. There are lists of companies that support the sponsors of these bills. Use them. Conversely, thank those companies that take a public stand against these laws, 

Use your words

Contact your legislators (no matter where you live) and tell them you, as a voter, can only support those who stand on the right side of this issue and back that up with your actions. Even in states that aren’t at risk to pass bad laws, we can get new, supportive laws passed, like the law in Maine allowing nurse practitioners, physician assistants and nurse midwives to provide abortion services.

Share your stories of how reproductive freedom and the assault on it affects you. Many people have shared moving stories of abortion in their lives. But even if you don’t have that story to tell, you may have another one. My wife and I can talk about choosing when to have our son (who is perfect in every way 😀) and the options available to us, because of where we live and the resources we have. 

Hold legislators and candidates (including the 2020 Presidential candidates) accountable for speaking clearly. They can’t mumble, sound wishy-washy, or equivocate. They must give full-throated, clear support for abortion rights, and we need to hold them to that. At this point, we can’t accept a candidate who will merely parrot back stock phrases about his or her support for a pro-choice position (“I will appoint judges who support Roe v. Wade”). Candidates need actual plans and policies

Use your brain

The anti-abortion movement, like so much on the right today, willfully, flagrantly denies science, logic, and evidence.  Take, for example, the current spate of “heartbeat” bills, banning abortion at six weeks. As Dr. Jen Gunter says, these should be called “fetal pole cardiac activity bills.” That’s because, at six weeks, a fetus DOES NOT HAVE A HEART.

Abortion Rights: Man holding sign, "Warning: Dangerous Fanatics Ahead" during the March for Women's Lives, April 25, 2004
March for Women’s Lives, April 2004

Ohio’s recent bill allows for insurance coverage for transplanting the fertilized egg in an ectopic pregnancy (when the fertilized egg implants outside of the uterus). This procedure does not exist! As Daniel Grossman, MD, Director of Advancing New Standards in Reproductive Health, states in an excellent twitter thread, this is “pure science fiction.”

Clarence Thomas’s recent concurrence in the Mike Pence/Indiana abortion case provides another example of willfully distorting the historical record. Thomas claims that the “foundations for legalizing abortion in America were laid during the early 20th-century birth-control movement.” This simply is not true. As it was in England, abortion was legal in colonial times. Abortion prior to “quickening” only became criminalized in the 1860s.

I’d add that Adam Cohen, the author of the book that Thomas cites in linking abortion and eugenics clearly indicates that Thomas gets this wrong too. While it may be true that Margaret Sanger supported eugenics, none of this was about abortion, which as illegal at the time. 

So, use your brain, use logic, and help others recognize the fallacies and fantasies in these laws. If one really wanted to support women’s health, the lives of children, and even reduce abortion, there are policies that could actually do this.