April 6th, 2018

If the internet has proven one thing over its lifetime, it has proven time and time again that technology moves much faster than the law. This is especially true in the world of copyright law, where artists’ rights to copyrighted works are seemingly up in the air depending on the new technological mediums to transmit works and the ability of the law to weigh in on it. Since 2007, the Ninth Circuit’s “Server Test” has been the standard to determine copyright infringement through transmissions over the internet after the landmark case Perfect 10, Inc. v. Amazon.com, Inc. In this case, the Ninth Circuit held that, over the internet, one infringes upon the exclusive distribution and display rights of a copyright holder only if they host and physically transmit the content themselves. In the Perfect 10 case, the Ninth Circuit held that Google did not commit copyright infringement under the test, as certain images claimed to be infringed upon were not stored on Google’s servers, but sourced from another website, through which Google was simply a medium of transmission.

Since the Ninth Circuit’s holding, the internet has continued to evolve and change, with the law chasing it. In 2012, the Seventh Circuit built upon the Ninth Circuit’s Server Test by holding in Flava Works, Inc. v. Gunter that embedding videos in a webpage does not constitute contributory copyright infringement. The logic of these decisions is that, if the copyrighted work is embedded, it is not actually stored on the webpage. Instead, think of embedded content on a webpage as cutting out a hole in a webpage, and through that hole the site’s code simply points the user toward a specific point in the internet, which is often a specific YouTube video or tweet. The copyrighted material is still where it always was on YouTube or Twitter; your site does not copy it to display on your site, but is literally showing the user the video or tweet from its original source. Since the Server Test, embedding content on the internet has been generally regarded as the safest (although not ironclad) protocol for making use of others’ tweets and videos without running afoul of copyright laws.

However, a recent district court case out of New York has rejected the Server Test and held that news outlets may be liable for copyright infringement, regardless whether they are storing or embedding copyrighted content. And it’s all thanks to Tom Brady, Kevin Durant, and the Boston Celtics.

In 2016, a photographer spotted Tom Brady walking down the street with Boston Celtics general manager Danny Ainge and snapped a photo of them. The photographer posted the picture to his Snapchat Story, and it went viral from there. The photograph was posted in several tweets, and from there those tweets, including the photograph, were embedded into online publications wildly speculating on whether Tom Brady was helping the Boston Celtics recruit prized free agent Kevin Durant. Through the embedded tweets, the photograph was prominently displayed to the viewer of the article without the need to click on a link or a thumbnail. The photographer promptly sued for copyright infringement, and the online publications pointed to the Server Test in defense.

In a surprising opinion, the district court declined to apply the Server Test in the case and held that the online publications could be liable for copyright infringement by embedding tweets. The court noted that it was skeptical of the Ninth Circuit’s Server Test, and concluded that, regardless of the Server Test, the defendants could be found liable for copyright infringement because they took active steps to have the photograph visibly shown on their sites, and that the actual display of the image trumped a lack of physical possession of the image on their servers.

The case is still ongoing, and the court noted that the online publications still have various defenses to avoid liability for copyright infringement, but the case has a potential wide reach in altering the rights of visual artists and writers in online media and determining whether a blogger can embed copyrighted content without liability. The case – Goldman v. Breitbart News Network, LLC, is currently in the process of being appealed to the Second Circuit. Should the Second Circuit affirm the district court, there may be a circuit split to be resolved by the Supreme Court. It would be partially humorous due to the fact that a collection of 60 to 80-year-old Supreme Court Justices would decide a case stemming from NBA Snapchat gossip, but also critical for the development of copyright law in online media.

Until that time, however, embedding tweets has become a much more risky proposition.

Categories: Intellectual Property