Websites, blogs, and other internet content providers may be facing a radical shift how they present third-party content, such as photographs, following a ruling out of New York. This past February District Court Judge Katherine Forrest, from New York’s Southern District, rendered an opinion where she held that embedding a third party’s tweets on your website may still constitute copyright infringement. Defendants in the case immediately appealed following the opinion which was then certified by the Second Circuit.
In the case at issue, Goldman v. Breitbart News Network, LLC, et al., 17-cv-3144 (KBF), Plaintiff Justin Goldman sued a plethora of media outlets for allegedly infringing upon his copyright over a picture taken of New England Patriots quarterback Tom Brady in 2016. The picture was of interest to millions in the sports world as Brady was believed to be assisting the Boston Celtics persuade Kevin Durant to join the team during free-agency prior to him joining the Golden State Warriors. Goldman first uploaded this picture to his Snapchat account which then “went viral” circulating Twitter, Reddit, and other websites until finally ending up on several sites run by large media outlets such as Breitbart, Time, Yahoo, Vox, and The Boston Globe—several of the Defendants in this case. The Defendant websites wrote various articles weighing in on the content of the picture, each embedding several of “tweets” containing the picture in their articles. The question the court considered was; does the fact that none of these sites ever downloaded, or otherwise stored the picture on their own servers protect them from the alleged copyright infringement? Judge Forrest said no.
In Judge Forrest’s 25-page opinion, she concluded that neither case law nor language in the Copyright Act of 1976 was persuasive in Defendants’ argument that the location of the copyrighted image is material to determining whether Defendants infringed upon the copyright holder’s exclusive right to display. As a matter of law, the Copyright Act of 1976 grants copyright holders several exclusive rights to their works such as: the right to reproduce, right to create derivative works, right to distribute, and right to display/public performance. Found in 17 U.S.C. § 106(5), the owner of a copyright has “the exclusive right to display the work publicly,” either “directly or by means of a film, slide, television image, or any other device or process. . . .” 17 U.S.C. § 101 (emphasis added). The Act later went on to define “device or process” as one now known or later developed, such as the internet and Twitter. It is undisputed that Goldman owned a valid copyright in the image, but the question arose as to whether embedding third-party Twitter users constituted improperly displaying the image.
Judge Forrest relied upon the language in the Act along with the Supreme Court’s 2014 American Broadcast Company v. Aereo decision to reject Defendants’ primary argument for New York to adopt the “Server Test” adopted only by the Ninth Circuit Court of Appeals. Defendants’ primary argument was because the embedded Tweets containing the photograph were never downloaded nor stored on any Defendant server, they were not improperly displaying the work. Rather, the Defendants insisted, that they merely “provided instructions for the user to navigate to a third-party server on which the photo resided.” This argument was based in sole part to the Ninth Circuit’s decision in Perfect 10 v. Google Inc. In Perfect 10, Perfect 10 sued Google for copyright infringement for providing thumbnails of third-party image holders following an image search. The Ninth Circuit determined that the turning point on which it found Google liable was that the images at issue were stored independently on Google owned servers. This, the court continued, was distinct from embedding or linking an image owned by a third party which the court held was not infringement. Thus, the Server Test concluded that a website content provider is liable for infringement or not based upon the location of the stored work.
In contrast, the Supreme Court held in Aereo, that a mere technical distinction “means nothing to the subscriber. It means nothing to the broadcaster. We do not see how this single difference, invisible to subscriber and broadcaster alike, could transform a system. . . .” Such a technicality cannot transform an infringing action into a passive one. In Aereo, end users would pay for the ability to stream near-live television broadcasts for a monthly fee paid to Aereo. Although Aereo played no part in determining hat the end user viewed, its passive actions still provided thousands of users the ability to view copyrighted material. The Court did not regard the location of the antennae used to project the broadcasts material to the outcome, rather only the fact that Aereo displayed the copyrighted works at all. Judge Forrest relied heavily upon this rationale to hold, in more direct terms, that “liability should not hinge on invisible, technical processes imperceptible to the viewer.” Goldman v. Breitbart News Network, LLC, et al., 17-cv-3144 (KBF).
Judge Forrest went on to reference several other recent New York District Court cases which declined to utilize the Ninth Circuit’s Server Test. See, Live Face on Web, LLC v. Biblio Holdings LLC, 2016 WL 4766344 (S.D.N.Y. Sept. 12, 2016); and, Capitol Records, LLC v. ReDigi Inc., 934 F. Supp. 2d 640 (S.D.N.Y. 2013). The Seventh Circuit Court of Appeals outright rejected the test along with a U.S. District Court in Texas in Flava Works, Inc. v. Gunter, 2011 WL 3876910, at *4 (N.D. Ill. Sept. 1, 2011), rev’d on other grounds, 689 F.3d 754 (7th Cir. 2012); and, The Leader’s Institute, LLC v. Jackson, 2017 WL 5629514 (N.D.Tex. Nov. 22, 2017)
In all, Judge Forrest concluded that the physical location of the image on a server owned and operated by a third party does not change the fact that it was the Defendants who displayed the image. However, Judge Forrest didn’t end her opinion there—discussing possible defenses to the Defendants’ use of the image following Goldman’s effective releasing the image to the public domain after uploading it on his Snapchat originally. But, should the Second Circuit uphold her decision the way media companies disseminate information from third-parties may begin to change drastically