Fair Use of the Week: Trollface – by “Shirley B”

This week on Fair Use of the Week we will be talking about Trollface.  Yes, trollface.  If you haven’t heard of it, or at least seen it, then you’re probably eighty and not spending enough time on the internet.  “Trolling,” which originally was used to describe a fishing technique in which one would drag a lure through the water to bait the fish out, now, in the digital world, describes the act of goading someone to elicit a reaction.  Whether someone does it “for the lulz” or some other reason, trolling has become annoyingly common, and Trollface is its symbol.  But now, Trollface’s widespread usage is under attack by its purported creator, a deviant art user who goes by the username Whynne.  Whynne alleges that users of the link aggregation and social media website Reddit.com, specifically of the subreddit “F7U12,” or “FFFFFFFUUUUUUUUUUUU,” has used his copyrighted image in a manner “devastatingly injurious to its original iconic value.”

Whynne's email complaining of copyright infringement.

Trollface purportedly first appeared in one of Whynne’s comics, seen here.  This week, we will determine whether or not Trollface and its use in rage comics on Reddit.com is fair.  To do that, we will look at the history of the image itself and the nature of the images as they are featured in specifically on Reddit.

This case is different from many of the others we have covered because Whynne is bringing a complaint against both Reddit and a group of Redditors, rather than a single independent actor. Because it would be impractical and essentially impossible to look at every single rage comic with Trollface that has ever been created, we will speak in generalizations and primarily about the role that Reddit.com has played in the alleged infringement.

Factor 1: The Purpose and Character of the Use: As we always do in our analyses, for this factor we will look at whether the work is transformative enough to stand up to a fair use claim and whether or not the work is being used in a commericial way.  First, the individual creators of rage comics (hereinafter “F7U12 Redditors”) juxtapose a high resolution image of Trollface with a person’s face that allegedly resembles the image.  While this may seem transformative, it is questionable whether the juxtaposition imparts new meaning on the Trollface.  In fact, the Trollface is probably imparting the meaning onto the actual faces, thereby making the use of Trollface non-transformative.  Second, some F7U12 Redditors may receive advertising profit from their individual websites.  As such, the use of Trollface by F7U12 Redditors who receive advertising profit is commercial and, thus, presumptively unfair.  When taking all this into account, this first factor seems to disfavor the F7U12 Redditors.

Reddit.com’s use, however, falls even more strongly in the realm of non-commercial use.  Reddit.com hosts thumbnail images of the Trollface and only links to the high-resolution images.  The low resolution images hosted by Reddit.com have little commercial value, and the use of them is practically non-commercial.  As such, Reddit.com is, in many ways, a link aggregation and search site like Google.

To understand why Reddit.com’s use of Trollface thumbnails is transformative, one must understand how Reddit.com operates.  Harnessing the wisdom of the crowds, Reddit.com uses a system called “karma.”   “Karma” makes sure that good posts “float” to the top, while posts that people don’t like are buried.  Users comment on the posts, and, similarly, their comments “float” to the top in the way that popular posts do.  From this persecptive, Reddit.com’s “karma” system provides public benefit by identifying newsworthy posts.

Here, the posts in dispute incorporate thumbnail images of Trollface.  These Trollface thumbnails are juxtaposed with Reddit.com’s karma ranking plus the community’s comments.  This makes Reddit.com’s use of thumbnails highly transformative because Reddit.com imparts new meaning on them.  As such, the trollface thumbnails serve an entirely different purpose than what Whynne intended.  This transformative use, coupled with the public benefit of Reddit.com, means that the first factor weighs in Reddit.com’s favor.

Factor 2: The Nature of the Copyrighted Work: Whynne originally made Trollface without any commercial motivation.  Trollface is itself a fair use of another’s drawing.   As Whynne admits, Trollface was his own attempt to draw Rape Rodent, and Rape Rodent itself was an attempt to draw Mighty Mouse.  The drawing of Mighty Mouse came out looking so creepy it earned the monikers “Rape Rodent” and “Molester Mouse.”  However, Whynne has registered his image with the U.S. Copyright Office and thus removed his image from the public domain.  Whynne has a right to make derivatives of his original comic, and because Trollface is a derivative work from Whynne’s original comic, it is protected by copyright.  As such, this factor weighs against the F7U12 Redditors.  Similarly, because the photos appeared on the internet before Reddit.com used corresponding thumbnail versions in its social news website, this factor weighs slightly against Reddit.com.

Factor 3: The Amount and Substantiality of the Portion Used: Trollface first appeared not as a standalone image, but as a single panel in a comic. Users of Reddit do not replicate Whynne’s entire comic, but only take the face itself.  Still, they replicate the face in its high-rez entirety.   This means that this first factor weighs against the F7U12 Redditors.

Conversely, Reddit.com only hosts and displays thumbnails on its site.  The high resolution images are kept on websites that specialize in image hosting, like imgur.com, to which Reddit links.  The use of thumbnails by a search provider, as the court in Perfect 10 v. Amazon.com held, constitute a reasonable amount of copying.  Using something less than a thumbnail would be unhelpful to a computer user.  Therefore, this factor weighs heavily in favor of Reddit.com.

Factor 4: The Effect of Use Upon Potential Markets: It is foremost important to identify the potential harm to the relevant markets.  Whynne makes a profit on his illustration by licensing it for merchandise. For example, he licenses his image with Deviant Art, which sells shirts, hats, buttons, bags, and even keychains on its site.  Whynne also has a line of Trollface soaps with the British website soapier.com and has tried to have Hot Topic carry a line of Trollface t-shirts.  These pieces of merchandise utilize high-resolution images of Trollface.

Whynne alleges in his complaint that the use of Trollface by F7U12 Redditors has harmed his original comic’s “iconic value.”  If Trollface fans were buying comics by F7U12 Redditors, we would agree.  However, from our research, no F7U12 Redditors are selling their comics.  Nevertheless, to the extent that F7U12 Redditors are reproducing high-resolution Trollface images without a license and then profiting from such use, we do think that they are harming Whynne’s potential licensing market.  Yet, this distinction between for-profit and not-for-profit F7U12 Redditors is artificial because none of the F7U12 Redditors’ uses are transformative.  When there is no transformative use, there is a presumption of market harm, which means this fourth fair use factor weighs against all of the F7U12 Redditors.

On the other hand, Reddit.com’s use has hardly harmed the market for Whynne’s full-size images and Trollface licenses.  Reddit.com’s low resolution, thumbnail images were highly transformative, and any allegation of market harm would be purely speculative–especially since there is, arguably, no commercial market for thumbnail images.  Therefore, this fourth fair use factor weighs in favor of Reddit.com.

Conclusion: Weighing the fair use factors leads to the conclusion that the F7U12 Redditors’ uses were unfair as none of the factors weigh in their favor.  But weighing the factors also leads to the conclusion that Reddit.com’s use was a fair one, especially in light of the public utility served by its “karma” feature and the transformative nature of its use.

The Video Game Industry and DRM – Time for a Change – by “Ryan B”

While the online music industry is shifting away from utilizing DRM, or digital rights management, the video game industry continues to employ restrictive DRM technologies. Although these two industries are certainly not identical, video game companies may have some important lessons to learn from recent changes made by the major music labels.

Over the past couple of years, the major music labels have agreed to do away with DRM restrictions of digital songs sold through online music stores such as iTunes. DRM has proven to be an unsuccessful strategy for the online music industry, failing to stop the piracy of songs while driving away honest consumers who were frustrated by the lack of control they had over purchased music content. The subsequent decision to eliminate DRM restrictions was applauded by consumers, who are now purchasing online music more than ever. The lesson was a simple one: making your consumers happy is a good business move.

This concept, however, seems to have slipped passed some of the leading companies of the video game industry. Three recently released, high-profile games, Assassins Creed 2, Command and Conquer 4, and Silent Hunter 5 have a new form of DRM protection called “always-online DRM” that is frustrating even the most loyal fans of these franchises.

Always-online DRM requires a user to be online at all times in order for the game to run. On the one hand, this allows video game companies to combat piracy by periodically checking that a user is a valid one. On the other, this can create a truly dissatisfying gaming experience for those consumers who have legitimately purchased a gaming title.

For example, if a user is playing EA’s Command & Conquer 4 in single player mode, which does not require an internet connection, they can be booted from the game and lose the progress they’ve made on their mission if their internet connection happens to go out. One reviewer of the game complained that even without losing the connection, “the spectre of catastrophe hung over [his] head like a razor sharp guillotine.” Even worse, if a user happens to be somewhere that lacks internet service, he simply cannot play the game at all.

While always-online DRM might make sense in some future world in which an internet connection is available everywhere with constant reliability, this is clearly not the case today. Instead, always-online DRM punishes the very consumers who are keeping video game companies in business, those who have legally purchased the games. This approach to DRM, which holds combatting privacy above the gameplay experience of consumers, has proven to be incredibly damaging in the past. For example, another EA game, Spore, was released in late-2008 with DRM restrictions that prevented users from installing the game on more than three machines. In addition, Spore required users to verify that their copy was legitimate each and every time they went online. Users became so frustrated with this highly restrictive DRM system that piracy became rampant, landing Spore at the top of the list of most pirated games for 2008.

The lesson here is that video game companies must be sure that they don’t employ DRM technologies that are so restrictive that they end up alienating the very consumers upon which their businesses depend. While doing away with DRM protection entirely may not make sense for the video game industry, keeping consumers satisfied must be prioritized above and beyond keeping pirates at bay. Otherwise, once-loyal customers may end up joining the pirates in droves.

ACTA: Globalizing the DMCA – by “Elie C”

Arrr, YouTube! Where be my videos??

Although the public has been denied access to negotiations (note: RIAA and MPAA don’t count as ‘the public’), drafts of the ACTA’s internet enforcement section leaked online last week, providing a chilling glimpse into the covert negotiations among world leaders and the possible future of global internet policing. Introduced by the US Administration in 2007, the Anti-Counterfeiting Trade Agreement (ACTA) proposes making ISPs liable for content that subscribers transfer using their networks, forcing ISPs to “operate “automatic technical processes” to detect copyright-infringing activities.” While section 512 of the DMCA already establishes third party liability in the US, the ACTA extends the liability of intermediaries beyond notice-and-takedown to possible Deep Packet Inspection (bye bye net neutrality?) to the contentious three-strikes rule (which France passed in 2009, banning three-time accused file-sharers from the internet),  thus exacerbating and spreading shortcomings of the DMCA internationally – namely the E.U., Canada, Mexico, Australia, New Zealand, South Korea, Singapore, Jordan, Morocco and the United Arab Emirates.

The current digital gatekeeping model established by the DMCA promotes a ‘shoot now, ask questions later’ approach to handling allegations of copyright infringement. While the DMCA imposes the burden of proof on copyright holders and outlines the necessary elements to a notification of copyright infringement, the court found in ALS Scan, Inc. v. Remarq Communities, Inc. that copyright owners do not have to identify all infringing material (“imperfect notice”), thus shifting this responsibility to service providers. Although the complaint of infringement does not prove that infringement took place, the DMCA allows ISPs to takedown content without investigating whether the material was truly infringing before taking it down, thereby shifting the burden of proof onto subscribers.

The only recourse that subscribers have is filing a counter-notice of a “good faith belief that the material was removed or disabled as a result of mistake or misidentification…” Intermediaries risk losing their safe harbor if they do not take down infringing works whereas the consequences of wrongful takedowns amount to little more than disgruntled bloggers. In practice, there is no enforcement of fair use considerations prior to takedowns; section 512 of the DMCA explicitly imposes burden of proof on copyright holders, but third party provisions ultimately shifts the burden to subscribers.

Need to brush up on copyright law? Check out this video before it’s taken down…

As the amount of information online far exceeds copyright holders’ ability to monitor the dissemination of their works, they are becoming increasingly reliant on targeting internet hubs managed by intermediaries. In turn, intermediaries like YouTube are going “well above and beyond our legal responsibilities” by turning to automated technologies to keep up with this inundation of user-generated and uploaded content; its ContentID system enables copyright owners to automatically identify their works in YouTube hosted videos, and subsequently monetize, track or block the content. Technology that automatically screens for the presence of copyrighted material inevitably steamrolls over fair uses in favor of ease for copyright holders and intermediaries. As a standard rather than rule, fair use cannot be identified by an algorithm (real lawyers have enough trouble accomplishing that as it is) and technologies such as ContentID will further contribute to mass takedowns, leaving subscribers guilty until they prove themselves innocent.