On February 15, 2018, a federal judge sitting in the Southern District of New York issued an opinion that could have profound ramifications for the average Internet user. In the case, Goldman v. Breitbart News Network LLC,[1] Judge Katherine Forrest ruled that the linking party responsible for a tweet with an embedded photo had committed copyright infringement.
The facts are as follows.
Justin Goldman took and uploaded a photo of New England Patriots’ quarterback Tom Brady onto his personal Snapchat Stories platform. Given that Snapchat’s service only allows ephemeral postings (i.e., 24 hours), the photo was then picked up by several other social media users, which made its way onto Twitter via a tweet. The tweeted photo then became an embedded link within news posts made by several news publishers, including Breitbart News, Heavy, Time, and Yahoo. The photo of Tom Brady was newsworthy at the time because the Boston Celtics basketball team was attempting to lure former Oklahoma Thunder starter Kevin Durant, and it was believed Tom Brady was used to help in those efforts.
The legal framework and its analysis go to the technical (and somewhat complex) aspects of the Internet and where it crosses with copyright law. Embedding is just using computer code to put some media file onto a website. In-line linking is directly linking an object, like a photo or image, housed on one site but viewed on another. The functionalities of embedding and in-line linking are essentially the same thing. Copyright law is really a bundle of rights, which includes the copyright owner’s right of public display. When the copyright owner displays his work online, he owns the copyright to that work of which all others who wish to re-display it must obtain a proper license from the copyright owner.
The crazy aspect of this case is that, at least, for IP professionals, this area of copyright law – public display rights of in-line linking – was pretty well-settled. The Ninth Circuit Court of Appeals enunciated more than a decade ago in Perfect 10, Inc. v. Amazon.com, Inc.,[2] a case of first impression, that a computer owner who does not store the image in his server is not displaying the image, and therefore, is not committing copyright infringement. This became known as the “server test.”[3] The “server test” has been used, more or less, as the standard the courts have used to determine whether the public display right is infringed, although it is officially the law of only one other circuit court of appeals – the Seventh Circuit, which includes Chicago.
In this case, Judge Forrester makes a twisted analysis of Perfect 10, and concludes that it does not apply to this case, in part, because she believes Perfect 10 misinterprets the public display right. Rather, she focused the technical differences between the Google search engine and news blog. Namely:
Google’s search engine provided a service whereby the user navigated from webpage to webpage, with Google’s assistance. 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.[4]
Judge Forrester’s analysis is wrong because it hair splits what the Internet is used for. Essentially, a user accesses one website over another at the user’s choosing; the fact it may be his or her favorite blog, or the search engine provided the list of websites based on the search, is irrelevant. The average Internet user does not quibble about how the information appears on the computer screen. Judge Forrester’s analysis fails to understand the wider implication of the limitations of the public display right, which is what Perfect 10 attempted to do; the rights of copyright are not infinite, and there are limitations and exceptions to copyright that are needed in order to preserve a balance between compensating creativity on one hand, and keeping allowances for freedom of speech, market access, prevention of monopolies, and equality of access (e.g., for the visually impaired).[5] In doing so, millions of Internet users could potentially face copyright liability for the mere act of accessing information.
The Goldman case has a long ways to go before it concludes its trek through the court system, including an anticipated appeal to the Second Circuit Court of Appeals, which holds jurisdiction over the Southern District of New York. Yet, the wider implications of this ruling are disturbing. It should concern everyone who maintains a social media presence or even conducts an Internet search.
[1] Case No. 1:17-cv-03144-KBF (S.D.N.Y. Feb. 15, 2018).
[2] 508 F.3d 1146 (9th Cir. 2007), reversing 416 F.Supp.2d 828 (C.D. Cal. 2006).
[3] Id. at 1159.
[4] Goldman, supra (slip op. at 23).
[5] See, e.g., World Intellectual Property Organization, Limitations and Exceptions to Copyright (accessed Feb. 19, 2018); see also Jerome H. Reichman & Ruth L. Okediji, When Copyright Law and Science Collide: Empowering Digitally Integrated Research Methods on a Global Scale, 96 Minn. L. Rev. 1362-1480 (2012) (arguing the need to carve out copyright exceptions in order to advance scientific research and innovation), and Jessica D. Litman & Pamela Samuelson, The Copyright Principles Project: Directions for Reform, 25(3) Berkeley Tech. L. J. 1175-245 (2010) (examining reforms to copyright law legislation which include limitations to copyrights).