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Press This and copyright infringement

Steampunkt-typewriter

Press This and what’s up

A helpful reader mentioned to me the other day that an interesting issue has cropped up in discussions within Github on the WordPress “Press This” tool. For those not familiar with this tool, go to “Tools” > “Available Tools” within your WordPress installation, where you’ll find a bookmarklet that you can add to your browser’s bookmarks bar. As explained in your WordPress installation:

“Press This is a bookmarklet: a little app that runs in your browser and lets you grab bits of the web.

Use Press This to clip text, images and videos from any web page. Then edit and add more straight from Press This before you save or publish it in a post on your site.”

This helpful video from WordPress.org explains Press This in more detail:

It seems that Press This is being further developed and that this has prompted some community members to think about copyright infringement through the use of this tool. For example, one person asks:

“I’m not the best person to comment on this, but it seems like building a tool that automatically scrapes copyrighted materials should have an upfront discussion about said legal implications, and whether this is something we should promote.”

Press This is fine (in more than one sense of the word)

It seems that a person in-the-know in Automattic has commented internally (no doubt in more detail than we see in the public online discussion) that Press This is fine. I agree. I thought it might be of interest to those following this issue to explain why. The discussion revolves around the notion of ‘authorising’ an action that amounts to copyright infringement or ‘contributing’ to infringement (similar concepts which, in different jurisdictions, are called different things). It explains why there is no such authorisation or contribution here and why, therefore, Press This is fine. I should add that there is no question of Press This being a device designed with the express purpose of infringing a copyright work. As such, that form of liability, that exists in some countries, is simply not relevant here. (I can’t, of course, comment on the copyright laws of all countries. Rather, I focus on the regimes in a handful of them.)

In many countries, ‘authorising’ certain copyright-related acts, such as copying a copyright work, is itself an exclusive act reserved to the copyright owner. This is the case, for example, in the United Kingdom, Canada, Australia and New Zealand. The consequence is that if a person (the ‘authoriser’) authorises you to copy someone else’s copyright work when the ‘authoriser’ hasn’t been permitted to do so, the authoriser may be infringing the owner’s exclusive rights.

In the United States, 17 U.S.C. § 106 states that “the owner of copyright under this title has the exclusive rights to do and to authorize any of [a list of exclusive acts such as copying the work]”. In a 2005 article Unauthorised: Some thoughts upon the doctrine of authorisation of copyright infringement in the peer-to-peer age, Napthali helpfully explains the US statutory reference to ‘authorize’ as follows:

“In the United States the Commonwealth statutory doctrine of ‘authorisation’ is considered under two common law heads: contributory and vicarious liability. However, statutory reference is made to the term “authorisation” in the Copyright Act 1976 (US), 17 USC, s 106. It confers upon copyright owners exclusive rights to ‘do and to authorize’ various acts. The Congressional Report stated at the time that ‘use of the phrase ‘to authorize’ is intended to avoid any questions as to the liability of contributory infringers’.”

This, I believe, is an Amstrad SM-104 tape recorder, at issue in the Amstrad case

This, I believe, is an Amstrad SM-104 tape recorder, at issue in the Amstrad case

The legal test for ‘infringement by authorisation’ differs in certain respects across jurisdictions but a good flavour of the general standard can be seen by looking at, for example, statements from the United Kingdom’s House of Lords and the United States Supreme Court. Starting with the UK, in the case of CBS Songs Ltd v Amstrad Consumer Electronics Plc [1988] AC 1013, Lord Templeman adopted the following passage from the earlier case of CBS Inc v Ames Records & Tapes Ltd [1982] Ch. 91:

“Any ordinary person would, I think, assume that an authorisation can only come from somebody having or purporting to have authority and that an act is not authorised by somebody who merely enables or possibly assists or even encourages another to do that act, but does not purport to have any authority which he can grant to justify the doing of the act.”

A contemporary description of this ‘Amstrad standard’ was given by Kitchen J in Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608. In this case, Kitchin J said:

“In my judgment it is clear … that ‘authorise’ means the grant or purported grant of the right to do the act complained of. It does not extend to mere enablement, assistance or even encouragement. The grant or purported grant to do the relevant act may be express or implied from all the relevant circumstances. In a case which involves an allegation of authorisation by supply, these circumstances may include the nature of the relationship between the alleged authoriser and the primary infringer, whether the equipment or other material supplied constitutes the means used to infringe, whether it is inevitable it will be used to infringe, the degree of control which the supplier retains and whether he has taken any steps to prevent infringement. These are matters to be taken into account and may or may not be determinative depending upon all the other circumstances.”

In the United States, I understand the legal test for contributory infringement goes back to at least Gershwin Publishing Corp v The Columbia Artists Management Inc 443 F 2d 1159 (2nd Cir 1971), in which the court stated that “one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer”, a test with which the United States Supreme Court would later have ‘no quarrel’. The later case I’m referring to is the Supreme Court’s decision in Sony Corp v Universal City Studios Inc 464 US 417 (1984).

Thanks to Nesster for the Sony Betamax 1978 image, licensed under a Creative Commons 2.0 Generic licence. Hope Sony doesn't mind!

Thanks to Nesster for the Sony Betamax 1978 image, licensed under a Creative Commons 2.0 Generic licence. Hope Sony doesn’t mind!

In the Sony case, Sony was sued by a handful of television and film companies for  contributory copyright infringement in relation to its marketing of betamax video recorders. Speaking for the majority of the court, Justice Stevens said this:

“[99] I recognize … that many of the concerns underlying the ‘staple article of commerce’ doctrine are present in copyright law as well. As the District Court noted, if liability for contributory infringement were imposed on the manufacturer or seller of every product used to infringe — a typewriter, a camera, a photocopying machine — the ‘wheels of commerce’ would be blocked. …

[100] I therefore conclude that if a significant portion of the product‘s use is noninfringing, the manufacturers and sellers cannot be held contributorily liable for the product’s infringing uses. … If virtually all of the product’s use, however, is to infringe, contributory liability may be imposed; if no one would buy the product for noninfringing purposes alone, it is clear that the manufacturer is purposely profiting from the infringement, and that liability is appropriately imposed. In such a case, the copyright owner’s monopoly would not be extended beyond its proper bounds; the manufacturer of such a product contributes to the infringing activities of others and profits directly thereby, while providing no benefit to the public sufficient to justify the infringement.”

There are slightly different tests in some other major jurisdictions, such as Australia, but I doubt the differences are material in the present context.

Applying the legal tests

In my view, no matter which test you apply, those behind Press This could not be held liable for authorising an exclusive act or for contributory copyright infringement merely by building it into WordPress core and thereby making the tool available. I’d go further and say “no way at all!” (We don’t even need to get to the difficult question of identifying an appropriate defendant.)

Just like a tape recorder, video recorder, camera or typewriter, Press This can be used for both non-infringing and infringing purposes. For example, it can be used to copy small excerpts of text that wouldn’t reach the law’s threshold for infringement, it can be used to embed videos whose uploaders have granted permission to embed and it can be used to copy images that, for example, have been licensed for re-use under Creative Commons licences or CC0.

It can, of course, also be used to infringe copyright, by copying a full article without permission or copying a full size copyright image without permission but, ultimately, Press This is simply a (pretty handy) tool of convenience. It’s the user’s responsibility to use Press This within the confines of copyright law (or run the risk of being accused of copyright infringement).

Great power and responsibility?

At the same time, some might say that ‘with great power comes great responsibility’. I have no idea whether there’d be any appetite to add a line of text to the Press This description within everyone’s WordPress installation (perhaps that’d start an arbitrary precedent), but it’d be pretty easy to say something like this (I’ve added the third paragraph under the ‘Press This’ heading):

PressThis

Just a thought. Happy pressing.

(Photo in featured image: 3355m / Bigstock.com)

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