On February 15, 2018, the Southern District of New York handed down a ruling in Goldman v. Breitbart finding that a webpage publisher who embeds a tweet containing a copyrighted photo is “displaying” the photo within the meaning of the Copyright Act and, in the absence of authorization, is violating the owner’s exclusive display rights. If allowed to stand, this ruling could dramatically increase publishers’ liability for the widespread practice of embedding tweets.
In the Goldman opinion, New York district court judge Katherine B. Forrest explains that the physical location of an image—i.e., on which server the image is stored—and possession of an image are not determinative in assessing whether a party has “displayed” the image. Rather, a webpage publisher who takes affirmative steps to show a particular photo to webpage visitors may not escape display infringement liability merely because it embeds a tweet linking to the image rather than storing the image on his own server. Forrest’s opinion embraces a purpose-driven, technology-neutral vision of the Copyright Act, reasoning that the difference between infringement and noninfringement should not rest upon “invisible technological details” as opposed to the apparent intent and effect of the publisher’s action.
The alleged infringement concerned a photo of New England Patriots quarterback Tom Brady with Boston Celtics general manager Danny Ainge. This photo was posted to Snapchat by the plaintiff, photographer Justin Goldman, and then subsequently shared in tweets by others. Several news sites embedded these tweets alongside stories that Brady was involved in the Celtics’ efforts to recruit NBA player Kevin Durant. Defendants Breitbart et al. argued that a determination of an infringement of the § 106(5) exclusive display right depends on the physical location and possession of an allegedly infringing image—and that they had never stored or possessed the image in question, because they had only included the images through embedded tweets. This argument was based in part on the “server test” announced by the Ninth Circuit in the 2007 Perfect 10 v. Amazon ruling, which exempted search engines from liability for linked images stored on third-party servers.
Judge Forrest rejected defendants’ argument, noting that the “server test” has not been widely adopted outside of the Ninth Circuit. Instead, the Goldman ruling embraces the purpose-driven guiding principles articulated by the Supreme Court in 2014 in American Broadcasting Cos., Inc. v. Aereo, Inc., a case dealing with infringement of the performance right. In Aereo, the Court refused to base its decision on the hardware or technological processes by which television shows were transmitted to individual users’ devices—a method of examination applied in previous rulings—and instead “read [the Copyright Act] in light of its purpose” to conclude that the challenged service constituted a performance. Essentially, Aereo ruled that a tech company that acts like a cable company should be treated like a cable company. Here, S.D.N.Y. makes a similar ruling: that a webpage publisher that acts like it is displaying a photo on its webpage should be treated as if it is, in fact, doing so.
Public interest advocacy group Electronic Frontier Foundation, which filed an amicus brief in favor of adopting “server test,” sees this ruling as a potential sea change, leading web publishers to drastically change their linking behaviors under the threat of liability. Likewise, defendants pointed in their summary judgment brief to a “chilling effect on the core functionality of the web.”
By contrast, Judge Forrest does not foresee “such dire consequences,” pointing to “a number as of yet unresolved strong defenses to liability separate from this issue,” making it less likely that this decision will be followed by a flood of litigation. Finally, Kenneth Norwick of Norwick & Schad, representing Goldman, notes that this ruling may be more limited than it appears, because of a crucial fact: Goldman initially shared his photo using Snapchat’s private settings, never intended for the photo to be shared publicly, and did not in fact post it to Twitter himself. By contrast, Norwick says, a copyright holder who posts his own image on Twitter could not sue for infringement based on a subsequent embedding of that tweet.
ABC, Inc. v. Aereo, Inc., 134 S. Ct. 2498 (2014).
Alison Frankel, N.Y. Judge Says Embedded Tweets May Violate Copyrights. But Don’t Panic!, Reuters (Feb. 16, 2018, 6:37 PM), https://www.reuters.com/article/legal-us-otc-panic/n-y-judge-says-embedded-tweets-may-violate-copyrights-but-dont-panic-idUSKCN1G02L8.
Justin Goldman v. Breitbart News Network, LLC, et al., case number 1:17-cv-03144-KBF (S.D.N.Y.)
Louise Matsakis, A Ruling Over Embedded Tweets Could Change Online Publishing, Wired (Feb. 16, 2018, 5:38 PM), https://www.wired.com/story/embedded-tweets-copyright-law/.
Daniel Nazer, Federal Judge Says Embedding a Tweet Can Be Copyright Infringement, Electronic Frontier Foundation (Feb. 15, 2018), https://www.eff.org/deeplinks/2018/02/federal-judge-says-embedding-tweet-can-be-copyright-infringement.
Adi Robertson, Embedding a Tweet Could Be Copyright Infringement, Says New Court Ruling, The Verge (Feb. 16, 2018, 1:20 PM), https://www.theverge.com/2018/2/16/17020278/tweet-embed-copyright-infringement-justin-goldman-tom-brady-photo-ruling.