(Reuters) - U.S. District Judge Katherine Forrest of Manhattan stunned media companies on Thursday, ruling that when publishers embed tweets containing a copyrighted image, they can be liable for infringement. For more than a decade, websites have relied on 2007 precedent from the 9th U.S. Circuit Court of Appeals to shield them from copyright claims based on embedded images. Judge Forrest said the 9th Circuit’s theory may have been wrong – and even if it wasn’t, the 9th Circuit decision in Perfect 10 v. Amazon doesn’t provide nearly as much protection as online publications have thought.
In the Perfect 10 case, the 9th Circuit said Google and other defendants were not liable for displaying images users accessed via links. The appeals court focused on where the digital images were stored, concluding that the defendants could not be held responsible for infringement unless they actually stored the copyrighted photos on their servers. Defendants in the case before Judge Forrest, including the Boston Globe, Gannett, Time Inc, Vox and Yahoo, described the server test as the well-established and unbroken authority for online infringement.
Judge Forrest said there’s nothing in the text or the legislative history of the Copyright Act to justify the 9th Circuit’s focus in Perfect 10 on the location of the copyrighted images. Congress intended to protect copyrights regardless of unanticipated technological developments, she said. And the U.S. Supreme Court’s ruling in 2014’s American Broadcasting Companies v. Aereo stands for the premise that copyright liability “should not hinge on invisible, technical processes imperceptible to the viewer.” The server test, she concluded, does not give online publishers a free pass for embedding links to copyrighted images not authorized by the copyright owner.
Is this the end of the Internet?
Advocates of the free exchange of information think it just might be. The public interest groups Electronic Frontier Foundation and Public Knowledge filed an amicus brief urging Judge Forrest to apply the 9th Circuit’s server test. Otherwise, they said, the threat of copyright liability would “radically change linking practices, and thereby transform the Internet as we know it.” Defendants in the case before Judge Forrest, captioned as Goldman v. Breitbart, said in their summary judgment brief that curtailing protection for embedded images would “cause a tremendous chilling effect on the core functionality of the web.”
Judge Forrest insisted the consequences won’t be so dire. She acknowledge warnings from the defendants and their amici about abandoning the server test, but suggested they’re overblown. “Certainly, given a number as of yet unresolved strong defenses to liability separate from this issue, numerous viable claims should not follow,” she wrote (in an uncharacteristically awkward sentence).
But I think the best reassurance comes not from the judge but from the lawyer who won the summary judgment ruling, Kenneth Norwick of Norwick & Schad. Norwick represents Justin Goldman, who took a photo of Tom Brady with a Boston Celtics manager on the streets of East Hampton, New York, one day in July 2016. Goldman posted the photo to his friends on his private Snapchat Story app. The photo then made its way to Reddit and Twitter. At the time, the Celtics were said to be trying to recruit NBA All-Star Kevin Durant. Goldman’s photo was seen as evidence Brady was helping the Celtics woo Durant. Several news organizations published stories embedding tweets with Goldman’s photo.
Norwick told me that coverage of Judge Forrest’s decision has overlooked a crucial fact: Goldman never wanted his photo to hit the Internet. Unlike people who publish images on Twitter, Facebook or Instagram, he shared the photo privately. “He did not put it in a tweet and did not authorize anyone else to,” Norwick said.
That’s significant, Norwick said, because there’s a difference between embedding authorized tweets and those containing images never intended for publication. “There may be an overblown reaction because people may interpret the decision to mean any tweet” subjects a publisher to copyright liability. Norwick said that’s not correct: Copyright holders who post images on Twitter can’t turn around and sue for infringement when websites republish their tweets.
But is Norwick suggesting that publishers must trace images back to their origin before embedding social media posts? That, he said, or risk infringement. “If you help yourself to any copyrighted material wherever you see it,” he said, “you run the risk of being an infringer.”
I emailed defense lawyers Regina Schaffer-Goldman of Morgan Lewis & Bockius, Robert Penchina of Ballard Spahr, Lacy Koonce of Davis Wright Tremaine and Thomas Lane of Winston & Strawn but didn’t hear back.