Of all of the things NFL quarterback Tom Brady has been accused of ruining over the years, the internet is not necessarily at the top of the list, and certainly not based on an alleged copyright infringement that he had no part in perpetuating. Yet, a photograph of him and Danny Ainge, the general manager of the Boston Celtics, could in fact forever change the internet and online publishing as we know it.
The photograph in question was taken by Justin Goldman, a casual passerby who was not a reporter, nor a professional photographer, in East Hampton, New York, in July 2016. After uploading the photo to his personal—and private—Snapchat Story his candid shot went viral after others who had access to the post uploaded it to Reddit and Twitter. It was then thrusted into the whirling vortex of the news cycle by various publishers that embedded the tweets showing the photograph in their websites, thereby displaying the photograph. At the time, the photo was of interest to sports fans because the Boston Celtics were allegedly trying to recruit NBA superstar Kevin Durant, who was a free agent; Brady, of course, plays for the New England Patriots, who are based in Foxborough, Massachusetts, forty-five minutes from Boston. The tactic of using a high-profile athlete from a different sport to entice a free agent was surprising to many.
What happened next will be taught in copyright law classes for years to come. In April 2017, Goldman, who was backed by Getty Images, sued various news organizations, including Breitbart, Time, Yahoo, Heavy, and the Boston Globe, for copyright infringement in the U.S. District Court for the Southern District of New York. Specifically, he alleged that the defendants violated his exclusive right to publicly display the photograph. A few things are notable at the outset. First, Goldman did not claim there was any copyright violation other than displaying the photo. Nor could he, as the news organizations did not copy or distribute the photo. Second, Goldman so far has not sued the individuals who copied and posted the photo to Reddit or those who recopied and posted it to Twitter. He only went after the news organizations that picked up the tweets and turned what had been a curiosity into a firestorm.
In a presumably rare instance of Breitbart and Time agreeing on something, all of the defendants banded together and filed a motion for summary judgment alleging that the “server test,” which was established in the Ninth Circuit’s 2007 decision in Perfect 10, Inc. v. Amazon.com, Inc., applied in the case and directed a finding of no infringement. Under the server test, the only way a publisher can be found liable for infringement for displaying a photo without permission is if it hosted the image on its own server or copied it. In other words, the messenger cannot be held liable for merely sending the photograph along.The server test would appear to be tailor-made for this case because none of the defendants hosted the image on their own servers, but instead embedded the link from Twitter’s servers. The defendants argued that because they did not have physical possession of the photograph and did not host it on their servers, their liability—although they prominently displayed the photograph on their pages—was nonexistent. Even though they presented the photograph seamlessly—that is, in such a manner as to appear that it originated from them and was not embedded in a tweet—they argued that they simply provided the instructions via HTML to allow the user’s page to bring up the photograph and insert it in the article. The focus, they argued, should be on their affirmative action of providing the instructions, rather than their passive action of displaying the photograph seamlessly.
You see where this is going, right? The presiding judge, the Honorable Katherine Forrest, rejected that line of reasoning. First, she noted that the Perfect 10 decision is neither binding nor widely adopted outside of the Ninth Circuit, and especially need not be followed by a district court in the Second Circuit, which has yet to weigh, endorse, or reject Perfect 10. Judge Forrest then broke new ground by opining that the Copyright Act could not be interpreted to assign liability for display infringement based on the physical location of the image in question or on who possessed it. She also noted that there were several fundamental factual differences between Goldman and Perfect 10.
Having rejected—and fundamentally questioned the legality of—the server test, Judge Forrest then cited the 2014 decision from the U.S. Supreme Court in American Broadcasting Companies, Inc. v. Aereo, Inc. In Aereo, the issue involved the exclusive right of performance; Aereo wished to allow users to stream live broadcast television over the internet without paying licensing fees to the content owners, such as ABC. While Aereo argued that it was merely facilitating the whim of the viewer to watch a particular program and the technical process by which this occurred was not infringing, the Court ruled that Aereo was no different than a “traditional cable system” and was required to pay licensing fees to the content owners for the use of their material. The Court ultimately refused to allow Aereo to “transform a system that is for all practical purposes a traditional cable system into ‘a copy shop that provides its patrons with a library card.” ABC v. Aereo, 134 S. Ct. 2498, 2507 (2014).
In relying on Aereo, Judge Forrest focused on the High Court’s refusal to allow Aereo to circumvent the traditional copyright laws because of technology that allowed the user to choose the program to watch rather than Aereo choosing for them. In either scenario, Aereo was facilitating the distribution of that programming to the user. The same lack of a distinction is critical in Goldman, where the publishers essentially argued that they were merely facilitating the viewing of the photograph with a click of a button and not taking any further steps. That argument failed because the result was the same as if the photograph had been on their servers: the news organizations’ websites displayed the photograph without the permission of the owner.
Therefore, Judge Forrest denied the motion for summary judgment. All this means is that the defendants were unable to prove that there were no genuine issues of material fact so as to entitle them to judgment as a matter of law. However, the decision could have far-reaching effects because Judge Forrest questioned the framework of the server test, which many organizations, including the Electronic Frontier Foundation (EFF), – a nonprofit organization dedicated to digital rights –have seized upon as the only thing preventing a flood of infringement actions against publishers and individual users. The EFF went so far as to declare that Judge Forrest rejected “years of settled precedent” in ruling that embedding a tweet can be a copyright infringement.
As this was a motion for summary judgment, the defendants have no direct right of appeal. The next step is to fully litigate the issue or settle out of court. However, the plaintiff does not appear to be interested in a settlement so much as in getting to the bottom of this thorny question of copyright law.
The publishers still have a number of defenses they could raise, including fair use. Judge Forrest has acknowledged that she has yet to answer the question of whether Goldman “released his image into the public domain when he posted it to his Snapchat account.” Usually, an affirmative answer to that question would require that the owner expressly assign a work to the public domain, but the news outlets could argue that there was an implied license—that is, that the photographer knew when he posted his photo to Snapchat that it might end up being used by news outlets.
Embedding links is not an exclusive practice of media companies. Internet users across the economy and with varying levels of resources embed content that is hosted via third-parties, relying (knowingly or not) on the server test to permit the sharing of content without worrying about the risk of crippling copyright liability.
The legal protection that the server test provides, encourages users and companies to create interesting and informed content that contains links to other sites and sources which results in a more well-informed and diverse public forum and is a hallmark of free expression. For example, Newspapers and bloggers can use Twitter posts to enhance their stories, while companies, schools, and libraries around the world can use embedded content to provide additional resources and educational material for students to engage with and learn from in one convenient place. The server test has also enabled widespread innovation across the internet particularly in the way E-commerce sites interact with consumers. Online venders employ embedded links to help customers’ comparison shop, allowing them to find the perfect product at the most affordable price.
A complete overhaul of the server test seems unnecessary given that photographers have the ability to issue a Digital Millennium Copyright Act (DMCA) takedown request, meaning they can ask the entity hosting the content to remove it if their material is infringing on their copyright. Embedding is a ubiquitous tool that has been essential to the growth of the internet and has had an intricate role in nurturing the open collaborative community that it is today. If this ruling stands it will undoubtedly have a chilling effect on internet users and will likely force media companies to embed tweets with media without the media or to avoid the practice all together. Additionally, online publishers will likely have to secure permission to use photos and videos of user’s tweets prior to embedding the content, making the online publishing process more cumbersome.
It’s important to point out that this decision does not apply to all tweets, but rather primarily concerns those that feature photographs and videos. Nevertheless, if this ruling is adopted by more jurisdictions, it will threaten millions of ordinary internet users with infringement liability and will fundamentally change one of the oldest internet traditions. The Goldman holding is a cautionary tale that puts internet users on notice that using embedding to display third-party content could result in infringement liability. For now, given the circuit split it would be wise for a company or individual to think twice before it decides to use the embed button.