Embedded-Tweet Ruling Divides Digital-Media Experts

MANHATTAN (CN) – A federal judge sparked division in the digital-media realm by finding that media outlets had violated a photographer’s copyright by embedding a tweet that contained his work in a report about New England Patriots quarterback Tom Brady.

Among those to meet the Feb. 15 ruling with swift condemnation was the Electronic Frontier Foundation. The online civil liberties group said U.S. District Katherine Forrest had empowered copyright claims against “millions of ordinary Internet users” who might link to an image online.

But Doniger Burroughs technology attorney Scott Burroughs took a different tack.

“We see this almost every time there is a ruling that benefits an artist over Big Tech,” Burroughs said in a phone interview.

“I think the court got it exactly right,” he said. “It focused on the effects of the final project on the viewer, instead of the hyper-technical structural issues. There is absolutely no reason to allow a website proprietor to avoid liability just because they are broadcasting via an embed versus an upload.”

Justin Goldman brought the underlying lawsuit in in New York last year after his candid photograph of Tom Brady walking the streets with an NBA team owner went viral.

While reporting on Brady’s possible role in an NBA deal, Breitbart and the other media outlets did not post the photo itself, but their online articles embedded a Tweet that included the photo.

The outlets claimed that such use was protected by a 2007 ruling out of the Ninth Circuit, Perfect 10 v. Amazon, which held that a website could publish photos from a third party as long as the photo was not hosted on the website’s own server.

Rejecting this argument, however, Forrest found last week that none of the four courts in her district that have discussed the so-called “server test” have adopted it for the display right.

Attempting to address the evolution of online copyright law, Forrest noted that Twitter, Snapchat and emerging social media platforms have muddied the waters on the limits of linking to copyrighted works.

“When the Copyright Act was amended in 1976, the words ‘tweet’, ‘viral’ and ‘embed’ invoked thoughts of a bird, a disease, and a reporter,” she wrote. “Decades later, these same terms have taken on new meanings as the centerpieces of an interconnected world wide web in which images are shared with dizzying speed over the course of any news day.”

Technological ambiguity aside, Forrest wrote that the act seems fairly clear in opposing a “rule that allows the physical location or possession of an image to determine who may or may not have ‘displayed’ a work.”

“It is clear,” Forrest wrote, “that each and every defendant itself took active steps to put a process in place that resulted in a transmission of the photos so that they could be visibly shown.”

Santa Clara University law professor Eric Goldman called that Forrest’s ruling “shocking” and “far reaching,” noting in a blog post that the judge appeared to “eliminate[] a bright-line rule that many internet actors rely upon.”

Goldman said the ruling could upend prima facie liability: if Twitter infringed a copyright in a photo, any other website linking to that photo would then be on the hook.

“A single infringing upload by a Twitter user potentially virally contaminates everyone else — potentially thousands of people — unwittingly using the embed feature, exposing all of them to financially crippling copyright litigation,” he wrote.

Several photography and media-licensing associations had filed amicus briefs in support of Breitbart and the other publishers, warning that adopting the “server test” would have devastating economic impact on artwork and photo licensing and allow websites essentially to steal copyrighted artwork.

In a bid to mollify such concerns, Judge Forrest denied that her ruling would not have “dire consequences.”

She said publishers have “a number of as of yet unresolved strong defenses to liability separate from this issue,” including fair-use defenses and limitations on damages from innocent infringement.

Other federal judges have recently dismissed similar lawsuits, such as director Quentin Tarantino’s suit against Gawker over linking in 2016 to his then-unproduced “Hateful Eight” script, and more recently a case by Playboy against website Boing Boing for linking to an Imgur page with all its centerfold models.

The case involving Playboy was dismissed by a judge in the U.S. District Court for the Central District of California on Feb. 14 — with the judge saying he was “skeptical” that the magazine could support either the inducement or material-contribution arguments in copyright infringement.

Playboy has the option to amend its complaint by Feb. 26.

In both cases, the judges wrote that merely linking to copyrighted material is not enough for infringement.

In 2013 meanwhile a judge ruled against The Washington Post and Agence France-Presse for taking images taken of the Haiti disaster from Twitter and posting them in news stories.

Both publications in that case had defended their conduct by relying on Twitter’s terms of service, which state posters retain ownership of their content — “what’s yours is yours,” the terms state — but that Twitter also has the right to publish, transmit and distribute that content to others.

Distinguishing the Breitbart case from the one involving Perfect 10, Forrest noted that the latter involved a search engine making copies of photos for which a user could search.

Forrest also noted that Goldman may have released the photo into the public domain as soon as he posted it to his Snapchat account. Some experts have said that appeared to be dicta in the ruling.

“You see social-media posts from an uncle every month that by posting to Snapchat you lose your copyright,” Burroughs said. “It’s so easy to identify the photographer or other creator and reach out to them for permission.”

Lawyers representing the Boston Globe and Breitbart did not return emails seeking comment on the ruling. Experts predict the case will be appealed to the Second Circuit.

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