Category Archives: Legal

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.

The US Constitution

Josephine Wolff “profoundly misunderstands” biometrics and the fifth amendment

In her recent article on Slate, Josephine Wolff slams Judge Kandis Westmore’s ruling that, in part, gives Fifth Amendment protection for biometrics (like fingerprints or facial recognition) when used as a password for cell phones.

Westmore’s ruling does appear to break new legal ground and I don’t know if it will hold up (assuming it’s appealed) or if other judges will issue similar rulings. However, to claim that Westmore doesn’t understand the Fifth Amendment goes a little too far. 

In her ruling, Westmore takes take the admonition from Kyllo and Carpenter seriously, that courts “must take account of more sophisticated systems that are already in use or in development.”

As others have suggested, Carpenter may significantly change how US courts view technology. See Paul Ohm’s argument that Carpenter (almost) rids us of the third-party doctrine (to which I say good riddance).

Wolff compares a cell phone to a safe, a metaphor I’ve seen used other places. As she rightly states, the Fifth Amendment prevents the government from compelling you to tell them the combination to the safe, but they can still use “jackhammers, drills, and explosives” to break into it.

Broken Safe
Photo by infomatique

But that’s not the right metaphor. The argument isn’t that the government can’t crack your cell phone. They can use whatever tools at their disposal to unlock the phone themselves.

But just like they can’t force you to unlock the safe yourself (either by telling them the combination or forcing you to do it yourself), they can’t force you unlock your cell phone.  Current law makes the distinction between compelling you to type in your password and placing your finger on the phone. Westmore says that distinction doesn’t makes sense, given the advances in technology.

I think that’s the right call. More importantly, it’s logical extension of Carpenter and to simply dismiss it as an error in understanding the Fifth Amendment drastically understates Carpenter’s importance and does an injustice to Westmore’s ruling.

Official Portrait of Brett Kavanaugh

But it was 36 years ago! And Brett Kavanaugh was just 17!

One of most common statements about Brett Kavanaugh’s alleged sexual assault of Christine Blasey Ford focuses on his age at the time, just 17.  Megan McCardle, for example, in a slightly more sophisticated phrasing of this, tweeted, “I wouldn’t disqualify anyone from higher office because of anything they had done as a minor.”

But it’s not just conservatives who have expressed concern over derailing Kavanaugh’s nomination over something that happened when he was not yet a legal adult. For example, Rosa Brooks,  whoa among other things, is a Fellow at the New American Foundation, tweeted, “I oppose Kavanaugh’s nomination, think senators should vote no based on his judicial record, but am uncomfortable with asserting that his behavior as a teen tells us anything about his ‘character’ now.”

Under different circumstances, I would agree with this concern. Read Bryan Stevenson’s description of a 14-year-old charged with murder, and weep for how the criminal justice system treated Charlie.

We understand that at 17, human brains haven’t yet been fully formed. The criminal justice system shouldn’t treat adolescents as adults; minors shouldn’t be put in jail or prison with adults. They shouldn’t be sentenced to death or even life without parole. And they shouldn’t be placed in solitary confinement. 

But Brett Kavanaugh will not go to prison for his alleged actions 36 years ago. No one will fire him. No one will punish him. 

Instead, he might not get a promotion. He might not become one of the nine most powerful judges in the United States. And I’m okay with that.

Kavanaugh’s actions since 1982 matter too

But I’m saying that not just because of what happened in 1982, but because of Kavanaugh’s behavior today. He fails to recognize that his recollection of how he behaved in high school may not be accurate and the things he did may have actually hurt others.

In his most recent statements about his behavior in high school, Kavanaugh acknowledged that he drank beer, sometimes “too many” and did things that now make him “cringe.” But such vague generalities fail to consider the people he may have done those cringe-worthy things to.

Imagine the counterfactual — rather than issuing a categorical denial, Kavanaugh acknowledged that he may have done this, but because of his drinking at the time, he simply can’t recall. Like his friend Mark Judge wrote of his own time in high school, heavy drinking can lead to blackouts1Those fortunate not to have either been a heavy drinker or having someone close to them be one may misunderstand what a blackout is. It is not the same as passing out. A blackout is a loss of memory. People simply don’t remember the events during the period of the blackout. They may still be functioning and engaging in a whole range of behavior, some of which may be quite dangerous (e.g., driving, having unprotected sex, or committing crimes). such that Kavanaugh might not even remember his actions. 

Let’s carry the counterfactual further and imagine that he recognized the differences between adolescent behavior and that of adults and that he’ll take that into consideration when ruling on cases.  

And we know that how the criminal justice system (and in society more broadly) treats people depends considerably on one’s (or their parents’) wealth and the color of their skin. So, imagine a Brett Kavanaugh, who never seemed to get in trouble for underaged drinking or other behavior that makes one “cringe,” recognized how the context of his life made that possible, and how others aren’t so lucky. 

But all the evidence we have points in the opposite direction.

Because he served on Court of Appeals for the D.C. Circuit, he hasn’t decided a lot of criminal justice cases. However, everything we’ve seen in his record suggests that he will take a harsh view of minors (and adults) caught in the legal system.

Kavanaugh certainly didn’t treat with care and respect the seventeen-year-old immigrant  in the Garza case, who he tried to prevent from having a legal abortion

He’s called former Chief Justice William Rehnquist his “judicial hero.” This “hero” argued that juveniles can be subject to the death penalty and that racial disparities in the criminal justice system are okay.

Going back to his time working with Ken Starr or when in the George W. Bush administration, we find other examples of his willingness to treat people harshly. While working on the Starr Report, he promoted the Vince Foster conspiracy theory without apparent consideration for Foster’s family, even though the official ruling, based on overwhelming evidence, concluded that Foster committed suicide. 

While in the Bush administration, he also helped bolster the case for torture. And once he was on the bench, he ruled in ways that prevent judicial oversight of torture and of Guantanamo.

Kavanaugh’s denial of even the possibility that the assault took place, his likely approach to criminal justice cases, and his inability to acknowledge others beyond his own experience lead to the clear conclusion that he does not deserve this promotion. So it’s the way he behaves today, not one night2or 4, as of when I wrote this 36 years ago that make him unworthy of the Supreme Court. 

Footnotes   [ + ]

1. Those fortunate not to have either been a heavy drinker or having someone close to them be one may misunderstand what a blackout is. It is not the same as passing out. A blackout is a loss of memory. People simply don’t remember the events during the period of the blackout. They may still be functioning and engaging in a whole range of behavior, some of which may be quite dangerous (e.g., driving, having unprotected sex, or committing crimes).
2. or 4, as of when I wrote this
Happy Birthday gummies

Is We Shall Overcome the new Happy Birthday?

In 2016, the song Happy Birthday finally entered the public domain.  This isn’t because the requisite time finally passed, but because of a lawsuit filed by filmmaker Jennifer Nelson, who showed that the murky history of the lyrics and the music to Happy Birthday extended far enough back to make the copyright no longer valid.

Now the same lawyer, Mark Rifkin, is trying to bring We Shall Overcome into the public domain.  The song, both the lyrics and the music, similarly has a long (and murky) history.

Photo by Lynne Hand