A judge in New York has reached the startling conclusion, startling because it upends years of precedent, that an embedded image of a social media tweet in a news article can violate copyright laws.

The issue involves a candid image of Tom Brady taken by photographer Justin Goldman, who posted it on Snapchat, from which someone grabbed it and posted in on Twitter.

Several publications then embedded that Twitter code in their news stories, so that even though they never downloaded the image itself, it appeared in the reports.

The judge noted that Goldman claimed he never publicly released or licensed his image and sued the defendants.

“This court concludes … that when defendants caused the embedded Tweets to appear on their websites, their actions violated plaintiff’s exclusive display right; the fact that the image was hosted on a server owned and operated by an unrelated third party (Twitter) does not shield them from this result.”

The opinion was from Judge Katherine Forrest, who said the long-understood and “well settled” law on such disputes, called the “server test,” was wrong.

The precedent from the 9th U.S. Circuit Court of Appeals differentiated between images based on the server on which the images resided.

That ruling found that thumbnail images, on Google’s server, infringed. But the same, full size images, “which were stored on third-party servers and accessed by ‘in-line linking’ – which works, like embedding, based upon the HTML code instructions – were not infringements.”

“In the Ninth Circuit, therefore, at least as regards a search engine, the “server test” is settled law,” the judge wrote, even though it’s different in other circuits.

The plaintiff in the case explained utilizing the server test concept “would have a ‘devastating’ economic impact on photography and visual artwork licensing industries, noting that it would ‘eliminate’ the incentives for websites to pay licensing fees, and thus ‘deprive content creators of the resrouces necessary to invest in further creation’.”

“The court agrees with plaintiff,” the judge wrote. “Nowhere does the Copyright Act suggest that possession of an image is necessary in order to display it. … Here defendants’ websites actively took steps to ‘display’ the image.”

She said, “properly understood, the steps necessary to embed a Tweet are accomplished by the defendant website; these steps constitute a process. The plain language of the Copyright Act calls for no more.”

The Electronic Frontier Foundation warned, “The logic of the ruling applies to all in-line linking, not just embedding tweets. If adopted by other courts, this legally and technically misguided decision would threaten millions of ordinary Internet users with infringement liability.”

“Courts have long held that copyright liability rests with the entity that hosts the infringing content – not someone who simply links to it,” EFF warned. “The linker generally has no idea that it’s infringing, and isn’t ultimately in control of what content the server will provide when a browser contacts it.”

The foundation continued, “She also argued that Perfect 10 (which concerned Google’s image search) could be distinguished because in that case the ‘user made an active choice to click on an image before it was displayed.’ But that was not a detail that the Ninth Circuit relied on in reaching its decision. The Ninth Circuit’s rule – which looks at who actually stores and serves the images for display – is far more sensible.”

EFF said, “We hope that today’s ruling does not stand. If it did, it would threaten the ubiquitous practice of in-line linking that benefits millions of internet users.”



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