A New York district court has ruled that embedding a tweet on a webpage could violate copyright — a decision that could have a wide-ranging impact on social media and publishing. Yesterday, Judge Katherine B. Forrest rejected the defense of several news outlets that embedded tweets containing a copyrighted photograph of Tom Brady, saying they could be liable for infringement even if they weren’t hosting the image on their site. Her decision can be appealed, but the reasoning could apply to many kinds of embedded content, making a basic feature of web publishing riskier to use.
The case in question dates back to 2016, when photographer Justin Goldman posted a Snapchat Story photo of NFL quarterback Tom Brady walking with Boston Celtics general manager Danny Ainge. A number of other people tweeted the photograph, and several news sites embedded these tweets to illustrate stories about Brady helping the Celtics recruit NBA player Kevin Durant.
Goldman sued the companies behind them — including Breitbart News Network, Gannett Company, Yahoo, and The Verge’s parent company Vox Media — for publishing the photograph without permission. (Vox Media was dismissed from the case last year, although its name still appears in the filing.) But the allegedly infringing pages didn’t directly include the image — they effectively just asked Twitter to make a specific tweet appear.
Forrest’s decision rested on two blockbuster tech industry lawsuits. One was the 2007 case Perfect 10 vs. Amazon, where a court ruled that Google search could show full-sized copyrighted images, as long as it was simply hotlinking them from other sites. This established something called the “server test,” which protects sites that display copyrighted content stored on someone else’s server. The EFF calls the server test “a foundation of the modern internet.” It provides clear guidelines for liability and means sites can’t be punished for content that’s beyond their control — if, for example, a host changes an embedded link to display a different image.
But Forrest interpreted this rule much more narrowly. She drew a distinction between a search engine, where users voluntarily search for and click on an image, and a news site, where “where the user takes no action” to see it. “Google’s search engine provided a service whereby the user navigated from webpage to webpage, with Google’s assistance,” she wrote. “This is manifestly not the same as opening up a favorite blog or website to find a full color image awaiting the user, whether he or she asked for it, looked for it, clicked on it, or not.”
To back up this reasoning, she cited a newer case: internet broadcasting service Aereo’s dramatic 2014 Supreme Court defeat. That ruling rejected a technology-based defense of Aereo’s unlicensed TV broadcasts, saying the tech in question didn’t actually change the core (and, the court found, copyright-infringing) service being offered. Forrest said this decision established that “mere technical distinctions invisible to the user should not be the lynchpin on which copyright liability lies.” In other words, if pasting a block of embed code into a page produces the same results as downloading and re-uploading an image, the image’s storage location shouldn’t matter.
The EFF believes this interpretation, which it calls “legally and technically misguided,” would turn a previously clear-cut safe harbor into a disastrously muddy guideline. “We hope that today’s ruling does not stand,” it says in a statement. “It would threaten the ubiquitous practice of in-line linking that benefits millions of Internet users every day.”
Forrest conceded that embedding specific copyrighted content, including the Brady photo, might still be legal. She said there were “genuine questions” about whether Goldman’s Snapchat post effectively put his photo in the public domain, and that there’s “a very serious and strong fair use defense” for using the photo to illustrate a related story. But that kind of case-by-case judgment would be very different from — and more ambiguous than — the blanket protection of the server test.