February 21, 2018
A federal judge sees embedded tweets as a violation of copyright law
by Alex Primiani
One of the hottest stories from last year was definitely November’s copyright infringement lawsuit, brought by photographer Justin Goldman. Doubtless you’ve all been all atwitter awaiting the verdict.
Well, here it is: for The Verge, Adi Robertson reports on a federal trial court’s decision in Goldman’s favor, ruling that publishers may indeed violate copyright law by embedding tweets on webpages.
Goldman sued several publishers, including Breitbart, Gannett, and Yahoo, after they uaed an image of Patriots quarterback Tom Brady that had made the rounds on Twitter after being culled from Goldman’s Snapchat channel. While none of these websites actually used the image directly, they did embed tweets that reproduced it, without Goldman’s permission.
According to Robertson, Judge Katherine B. Forrest decided for Goldman on the basis of two precedential tech cases. In 2007’s Perfect 10 v. Amazon, the Ninth Circuit Court of Appeals set guidelines for search engines’ reproduction of copyrighted material in query results, and created the “server test,” which prompts courts considering copyright claims to determine whether sites are actually copying material owned by someone else onto their own servers, or merely linking to files that continue to live on other servers. Robertson writes that Forrest’s decision attempts to narrow the terms of the test:
She drew a distinction between a search engine, where users voluntarily search for and click on an image, and a news site, where “where the user takes no action” to see it. “Google’s search engine provided a service whereby the user navigated from webpage to webpage, with Google’s assistance,” she wrote. “This is manifestly not the same as opening up a favorite blog or website to find a full color image awaiting the user, whether he or she asked for it, looked for it, clicked on it, or not.”
Forrest’s other big citation is to 2014’s ABC v. Aereo, in which the Supreme Court found that simply streaming copyrighted material infringed on that copyright, since it was in effect no different than downloading and reselling it.
To Forrest, that means the photos of Brady were simply not altered to the point where fair use provisions come into play. And while the content that’s shared on social media sites may still fall into a copyright gray zone, publishers seem likely to begin making decisions about embedded content more cautiously.
Alex Primiani is senior publicist at Melville House.