Some major news outlets got sued over simply embedding a Tweet in their articles and a federal court ruled it to be copyright infringement.
Justin Goldman filed a lawsuit against Breitbart, Time, Vox and Yahoo for embedding tweets containing a photo Goldman took of New England Patriots Quarterback Tom Brady.
Goldman did not post the photo to Twitter, but on Snapchat. However, the photo ended up on Twitter’s servers and in several tweets.
Twitter was not named in the suit and one has to wonder why not, along with any and everyone who tweeted the picture.
Still, it has become fairly commonplace for news outlets and bloggers to embed tweets. If Goldman didn’t want his image to be embedded, perhaps he should see to turn off the embed feature via Twitter. YouTube has that feature on its site.
As for the media companies, they claimed they didn’t commit copyright infringement because the image was stored on Twitter’s servers, but the court said that they still committed a misdemeanor because they embedded the photo in tweets in their articles.
“[W]hen 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,” U.S. District Court Judge Katherine Forrest ruled in court documents.
How is Twitter unrelated? They are hosting the image that was swiped from Snapchat?
“[The media companies’] actions violated plaintiff’s exclusive display right,” Forrest added. “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.”
Well, if the court can rule on a photo being embedded, what about anything else? Like, say, stupid statements people make, or hashtags that someone comes up with? What about excerpting articles that are linked to in order to provide a source? Or what about quoting someone from an embedded tweet?
If this ruling is allowed to stand, there is no end to what people will go after.
The Electronic Frontier Foundation spoke on the issue as well. In a statement, EFF wrote:
Rejecting years of settled precedent, a federal court in New York has ruled [PDF] that you could infringe copyright simply by embedding a tweet in a web page. Even worse, 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. 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. This “server test,” originally from a 2007 Ninth Circuit case called Perfect 10 v. Amazon, provides a clear and easy-to-administer rule. It has been a foundation of the modern Internet.
She [Forrest] 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.
If this ruling is appealed (there would likely need to be further proceedings in the district court first), the Second Circuit will be asked to consider whether to follow Perfect 10 or Judge Forrest’s new rule. 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 every day.
Indeed, the ruling will, no doubt, be appealed. However, it seems frivolous to me that Mr. Goldman went after news outlets for simply using Twitter’s embed feature, but apparently, Goldman doesn’t want to attack one of his favorite social media platforms for some reason. Maybe it’s me, but something doesn’t smell quite right in all of this and I’m not just talking about the ruling.