The Internet Is Not a Consequence-Free Zone

Social Media Shattered Barriers to Publication

The ubiquity of social media is undeniable. With Internet access available virtually everywhere, the sight of people fixated on their mobile devices is not only common, but seemingly unavoidable. Indeed, as of October 2015, approximately two-thirds of American adults were using social media, nearly a tenfold increase over the past decade. See, “Social Media Usage: 2005-2015,” Pew Research. The pervasiveness of social media is reflected in the following statistics:

Facebook: Facebook was created in February 2004. By December 2004, it had 1 million users. As of March 2016, Facebook had approximately 1.65 billion monthly active users and 1.09 billion daily active users. On average, the Like and Share Buttons are viewed across almost 10 million websites daily. See, “The Top 20 Valuable Facebook Statistics (Updated 2016),” Zephora.

Instagram: Instagram launched in October 2010. By December 2010, it had 1 million users. As of September 2015, more than 400 million people used Instagram every month. Today, more than 95 million photos are posted on Instagram per day.

Twitter: Twitter launched in 2006. By 2007, approximately 5,000 tweets were posted per day. By 2008, Twitter had 3 million registered users. As of March 31, 2016, approximately 500 million tweets are published per day and Twitter has approximately 310 million monthly active users. See, “Twitter Usage Statistics,” Internet Live Stats.

YouTube: YouTube currently has over a billion users and reaches more 18-34 and 18-49 year-olds than any cable network in the U.S. As of July 2015, 400 hours of video were uploaded to YouTube every minute. (See, http://bit.ly/2a4vgZJ.)

The widespread use of social media, in conjunction with the ease and speed with which users are able to create and disseminate content, has shattered traditional barriers to publication. Although the means by which one could publish or otherwise disseminate creative works used to be limited to conventional media (e.g., books, newspapers, magazines, music performances/recordings, theater, television, movies), that is no longer the case, thanks to the Internet and mobile devices. As a result, a tremendous volume of new material is being published every second. This not only means that there are many new copyright owners every minute, but also that detecting and policing copyright infringement are becoming increasingly daunting tasks.

Copyright and Social Media

Material created and disseminated via social media can be subject to copyright protection. Under Section 102 of the U.S. Copyright Act, copyright protection subsists in original works of authorship fixed in any tangible medium of expression. 17. U.S.C. '102(a). Such works may be literary, musical, dramatic, choreographic, pictorial, architectural, motion pictures or sound recordings. Id. Excluded from copyright protection are facts, ideas/concepts, individual words, short phrases and familiar symbols (although certain words, phrases and symbols may be subject to trademark projection).

In keeping with these principles, copyright law would not protect a tweet noting that there are 26 letters in the alphabet, a Facebook post reporting that an earthquake had just occurred registering 4.5 on the Richter scale, the notion of creating a Pinterest category identifying potential wedding venues, or the concept of posting a photograph of a sunflower to Instagram. That said, copyright law may very well protect the posting of a joke about how certain letters of the alphabet are useless, a story about one's terrified reaction to an earthquake, or a specific photograph of a sunflower.

The rights in one's protected expression are exclusive, meaning that the copyright owner has the sole legal right to reproduce, distribute, perform, or display the copyrighted work, or to prepare derivative works based on that work. 17. U.S.C. '106. The owner also has the exclusive right to authorize others to make the foregoing uses of his/her work. Id. Therefore, if particular social media content is subject to copyright protection in the first place, then the author of that content has the exclusive right to make use of it or permit others to do so.

One who copies, without permission, original elements of a copyrighted work may be liable for copyright infringement. 17 U.S.C. '501; Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc. , 499 U.S. 340, 361 (1991). In such a case, the owner may be entitled to an injunction, damages, and attorneys' fees, among other remedies. 17 U.S.C. ”502-506. Depending on the circumstances, an infringer may also be subject to criminal penalties. 17 U.S.C. '506. Although not every infringement of content published via social media will justify filing a lawsuit, this does not mean that infringement has not occurred.

These principles are applicable in the social media context. For example, with regard to the dichotomy between unprotectable ideas and protectable original expression, the notion of poking fun at someone spilling an expensive drink on the sidewalk would be an unprotectable idea, but the particular expression of that idea ' say, in a joke posted on Twitter ' may very well be protected. This particular scenario came to fruition for Olga Lexell, a freelance writer in Los Angeles. Lexell tweeted the following joke, which was subsequently copied verbatim by numerous Twitter users: “saw someone spill their high end juice cleanse all over the sidewalk and now I know god is on my side[.]”

Notably, the Twitter users who used Lexell's joke did not retweet Lexell's tweet; rather, they directly copied her language and passed it off as their own. Had they simply retweeted, the joke would properly be attributed to her (by inclusion of her Twitter handle @runolgarun), and Lexell surely would not have complained of the helpful promotion of her content. Because the offending Twitter users instead directly copied her joke ' without her permission to repost and without giving her credit ' Lexell filed a request with Twitter to have the tweets removed. Twitter complied with her request, in accordance with its policies aimed to curb infringement.

A similar situation arose in the case of Josh Ostrovsky, the man behind the widely popular Instagram account @TheFatJewish. Ostrovsky came under heavy fire from comedians (including Patton Oswalt) and others for his consistent history of copying and reposting humorously captioned photographs originally posted by other Instagram and Twitter users, without crediting the original authors. The public pressure on Ostrovsky was so significant that he began crediting the original posters of the content in his own Instagram posts.

As the foregoing examples demonstrate, not every dispute regarding the appropriation of another's content on social media will result in a lawsuit. Similarly, not every copying of protectable content will be considered infringement and give rise to liability. For instance, the fair use doctrine permits the use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship or research. 17 U.S.C. '107. In determining whether there has been fair use, courts consider factors such as the purpose and character of the use, including: whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. Id.

Fox News Network was recently involved in a lawsuit arising from its posting of a copyrighted photograph on one of its Facebook pages, and unsuccessfully asserted fair use as a defense in its motion for summary judgment. Plaintiff North Jersey Media Group Inc. sued Fox News and one of its television hosts, Jeanine Pirro, alleging that the defendants infringed the plaintiff's copyright in its photograph of three firefighters raising the American flag at the World Trade Center site on 9/11. Fox News had posted a photograph juxtaposing the 9/11 photo with the classic World War II photograph of four U.S. Marines raising the American flag on Iwo Jima on the Facebook page for its Justice with Judge Jeanine program.

Fox News moved for summary judgment, asserting that its posting on the 12th anniversary of the attacks was “transformative” and part of a global discussion of 9/11, not a commercial promotion of its television program. In February 2015, U.S. District Judge Edgardo Ramos denied Fox News' motion and refused to rule that the posting was fair use, finding that the key factor of whether Fox News' use might harm the market for the photo weighed in the plaintiff's favor. Fox News sought an immediate appeal to the Second Circuit, on the grounds that that Judge Ramos should have also considered the non-visual ways in which Fox News had altered the image, and the unique, transformative qualities of social media, in evaluating Fox News' fair use defense. The parties ultimately settled the dispute before Fox News' appeal went forward.

Social Media Attempts to Curb Infringement

Given the prevalence of content subject to copyright protection in social media, it is not surprising that most social media platforms have established policies and procedures to address copyright infringement on their platforms. (See: Facebook; Twitter; YouTube; Pinterest; Instagram; SnapChat.) These policies facilitate the reporting and removal of infringing material. In fact, some platforms, such as Facebook and Instagram, will disable the accounts of repeat infringers.

While it may be good business for social media companies to protect the intellectual property rights of their users ' after all, social media platforms depend upon user-generated content ' it is unlikely that they are doing so primarily out of the goodness of their corporate hearts. Under the doctrines of vicarious and contributory copyright infringement, one who does not engage directly in copyright infringement can be held liable for infringement by a third party under certain circumstances. Therefore, the desire to avoid liability for their users' copyright infringement likely drives these platforms' copyright protection policies.

In 1998, Congress passed the DMCA, which, inter alia , addresses an online service provider's (OSP) potential liability for copyright infringement by its users. The DMCA “was intended to protect qualifying service providers from liability for all monetary relief for direct, vicarious, and contributing infringement” if certain conditions are met. UMG Recordings v. Shelter Capital Partners LLC, 718 F.3d 1006, 1028 (9th Cir. 2013). Under the second title of the DMCA, the “Online Copyright Infringement Liability Limitation Act,” an OSP will be insulated from liability for its users' copyright infringement provided it:

1. Does not have actual knowledge that the material or an activity using the material on the system or network is infringing; is not aware of facts or circumstances from which infringing activity is apparent; or upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
2. Does not receive 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;
3. Upon notification of claimed infringement, responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity; and
4. Designates an agent to receive notification of claimed infringement (and provides the agent's information on its website and to the Copyright Office). 17 U.S.C. '512(c).

Thus, the social media platforms' policies and procedures for reporting claims of copyright infringement and the removing the purportedly infringing content are likely intended to secure safe harbor under the DMCA.

To qualify for Section 512's safe harbor, a social media platform “need not monitor its service or affirmatively seek facts indicating infringing activity.” (Commerce Rep. (DMCA), p. 53.) Instead, the onus is on the copyright owner to identify infringing activity and notify the platform. Some social media platforms, however, have developed copyright protection tools to assist owners in detecting infringing content. For instance, Facebook's Rights Manager (https://rightsmanager.fb.com/) and YouTube's Content ID were designed to empower content owners to monitor and protect their uploaded content and identify infringing uses. YouTube also created a Content Verification Program, which “helps copyright owners search for material that they believe to be infringing and provide YouTube with information reasonably sufficient to permit us to locate and remove that material.” Currently, a content owner must apply to Facebook and YouTube to gain access to the Rights Manager and Content ID tools. Pinterest generated a code to aid website owners in preventing a third party from “Pinning” (sharing) content from the owner's website. When the code is used, a person who attempts to pin from the website will see the following message: “This site doesn't allow Pinning to Pinterest. Please contact the owner with any questions. Thanks for visiting!”

The legislative history of the DMCA indicates the purpose of Section 512: “[W]ithout clarification of their liability, service providers may hesitate to make the necessary investment in the expansion of the speed and capacity of the Internet. In the ordinary course of their operations service providers must engage in all kinds of acts that expose them to potential copyright infringement liability ' . In short, by limiting the liability of service providers, the DMCA ensures that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will continue to expand.” (S. Rep. (DMCA), p. 8.) While complying with the conditions set forth under the Act has not entirely prevented lawsuits against social media companies, it certainly seems to have helped keep them at bay.

Hajir Ardebili and Jamie Zagoria are litigators in the Los Angeles office of Kelley Drye & Warren LLP. Their practice includes complex business cases, entertainment litigation, intellectual property matters, and First Amendment litigation. The authors may be reached at [email protected] and [email protected], respectively.