Judge rules that embedding a photo tweet is still copyright infringement

In a court case that could fundamentally change what constitutes copyright infringement online, a New York district judge has ruled that embedding a tweet that contains a copyright protected photo does, in fact, constitute a copyright violation. If the ruling is upheld, its impact across the internet is hard to understate.

The case involves a photographer, Justin Goldman, who sued several major publications including Time, Vox, Breitbart, and others, when they embedded someone else's tweet of his copyright-protected photo of NFL star Tom Brady. Judge Katherine B. Forrest is ruling in favor of Goldman, writing:

...when defendants caused the embedded Tweets to appear on their websites, their actions violated plaintiff’s exclusive display right; the fact that the image was hosted on a server owned and operated by an unrelated third party (Twitter) does not shield them from this result.

Have you ever embedded someone else's tweet on your website? A judge just said that you could be liable for copyright infringement. https://t.co/Lgw3rTI55O

— EFF (@EFF) February 16, 2018

As the Electronic Frontier Foundation (EFF) points out, this ruling rejects a decade-old legal precedent set by the Ninth Circuit Court in a 2007 ruling called "Perfect 10 v. Amazon." That case ruled that the company hosting the content—Twitter, Facebook, YouTube, etc.—was liable, and absolved the company or publication or person who actually embeds the content. This, in essence, is how the internet has worked ever since.

Some sites, like YouTube, give creators the option to limit embedding so that only sites they specify (or nobody at all) can embed the content on their own platform, but others like Instagram and Twitter offer no such control. If your account is public, and you share a copyright-protected photo on it that goes viral, you can expect it to crop up on any number of outside websites, publications, and blogs with nary a permission request.

Of course, if it's your own share, you could always take down the original Tweet or Instagram post or shift your account to private, breaking all of those embeds all at once. You (or the original poster) could also change what the post says or even swap out the file that shows up under that embed. But irrespective of those things, up until now, you had no legal case against the people or publications embedding your photo, since they have no control over what the hosting server will provide with that embed code—this is called the "server" test.

Shooting wet plate collodion double exposures... handheld https://t.co/NBW7tFtVLs pic.twitter.com/xLF4zKZnjE

— DPReview (@dpreview) February 16, 2018

According to this ruling, embedding the DPReview tweet above without permission from the original creator of the GIF constitutes copyright infringement.

The server test is what Judge Forrest ultimately rejected, and if the ruling is upheld, it could apply to more than just embedding a tweet. As the EFF explains, the wording is broad enough that "the logic of the ruling applies to all in-line linking," which could "threaten millions of ordinary Internet users with infringement liability."

Appeals will no doubt be filed, and a closer look at the ruling and the standard practice of embedding on the internet may very well lead to its being overturned. But if it's not, expect it to be open season for social media copyright infringement cases.

If you'd like to dive deeper, you can read the full ruling for yourself at this link.

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