Terrible Copyright Ruling Over An Embedded Tweet Undermines Key Concept Of How The Internet Works
from the this-is-bad dept
Just earlier this week we noted that a judge easily laughed Playboy's silly lawsuit out of court because merely linking to infringing content is not infringing itself. But a judge in New York, Judge Katherine Forrest, has ruled on a different case in a manner that is quite concerning, which goes against many other court rulings, and basically puts some fundamental concepts of how the internet works at risk. It's pretty bad. In short, she has ruled that merely embedding content from another site can be deemed infringing even if the new site is not hosting the content at all. This is wrong legally and technically, and hopefully this ruling will get overturned on appeal. But let's dig into the details.
The case involved a photographer, Justin Goldman, who took a photograph of quarterback Tom Brady on Snapchat. Somehow that image made its way from Snapchat to Reddit to Twitter. The photo went a bit viral, and a bunch of news organizations used Twitter's embed feature to show the tweet and the image. Goldman sued basically all the news publications that embedded the tweet -- including Breitbart, Vox, Yahoo, Gannett, the Boston Globe, Time and more. Now, multiple different courts around the country have said why this should not be seen as infringing by these publications. It's generally referred to as "the server test" -- in which to be direct infringement, you have to host the image yourself. This makes sense at both a technical and legal level because "embedding" an image is no different technically than linking to an image. It is literally the same thing -- you put in a piece of code that points the end user's computer to an image. The server at no point hosts or displays the image -- it is only the end user's computer. In the 9th Circuit, the various Perfect 10 cases have established the server test, and other courts have adopted it or similar concepts. In the 7th Circuit there was the famous Flavaworks case, where Judge Posner seemed almost annoyed that anyone could think that merely embedding infringing content could be deemed infringing.
But Judge Forrest has decided to carve a new path on this issue in Southern New York, teeing up (hopefully) an opportunity for the 2nd Circuit to tell her why she's wrong. Even more troubling, she actually relies on the awful Aereo "looks like a duck" test to come to this conclusion. Let's dig into her reasoning. The key issue here is the exclusive right to "display" a work under copyright, known as 106(5) under copyright law.
It's also important to note that this ruling is just at the summary judgment stage, and doesn't mean that the various publications will be found to have infringed -- it just means that the court is letting the case go forward, meaning that the various publications might now raise various defenses as to why their embedding is not infringing. It's still concerning, because given the "server test" in other jurisdictions, such a case would easily be tossed on a motion to dismiss or summary judgment because there's no legitimate claim of copyright infringement if no direct infringement can be shown. But here, Judge Forrest argues that because an embed leads an end user's computer to display an image, that somehow makes the publisher who included the embed code possibly liable for infringing the display right. Because it looks like a duck.
This is not a new issue by any means. I found a story from over a decade ago in which I warned that we'd see a lot more stupid lawsuits about embedding content from platforms, and have to admit I'm a bit surprised we haven't seen more. The reason that's the case is almost certainly because of the reliance of many courts on the server test, leading many to realize such an argument is a non-starter. Until now.
Forrest basically says that even though the image never touches the publisher's server, and the only thing the publisher is doing is linking to an image in a manner that makes the end-user's browser grab that image from another location and display it, it still counts as infringement -- because of the Aereo ruling. If you don't recall, Aereo involved a creative (if technically stupid) method for streaming over-the-air broadcast TV to users by setting up many local antennas that were legally allowed to receive the signals, and then transmitting them over the internet (which is also legal). But, the Supreme Court came up with a brand new test for why that's not allowed -- which we've called the "looks like a duck" test. The ruling found that because Aereo kinda looked like cable to the end user, the technical rigamarole in the background to make it legal simply doesn't matter -- all that matters is how things looked to the end user. Forrest argues the same is true here:
Moreover, though the Supreme Court has only weighed in obliquely on the issue, its language in Aereo is instructive. At heart, the Court’s holding eschewed the notion that Aereo should be absolved of liability based upon purely technical distinctions—in the end, Aereo was held to have transmitted the performances, despite its argument that it was the user clicking a button, and not any volitional act of Aereo itself, that did the performing. The language the Court used there to describe invisible technological details applies equally well here: “This difference means nothing to the subscriber. It means nothing to the broadcaster. We do not see how this single difference, invisible to subscriber and broadcaster alike, could transform a system that is for all practical purposes a traditional cable system into a ‘copy shop that provides patrons with a library card.’”
We were worried about the wider impact of the Aereo "duck" test -- and people told us it wasn't that big a deal. Indeed, until this ruling, Aereo hasn't been (successfully) cited very often. Many thought that the very specific nature of Aereo might limit that precedent to a very specific situation involving cable TV. This ruling suggests that the silly "duck" test may be spreading. And that's bad, because it's based on ignoring what's actually happening at the technological level, in which the technology may be designed specifically to not violate any of the exclusive rights of copyright law.
Also, it should worry people greatly that courts are using this "we don't care about what's actually happening, we just care what it looks like" standard for judging infringement. Because to infringe on a copyright requires a very specific set of facts. And here (as with Aereo) the court is saying "we don't care about whether or not it actually violates one of the exclusive rights granted under copyright, we only care if it looks like it infringes." That's... a huge change in the law, and it's not at all how copyright law has been judged in the past. It can and will be used to hamstring, limit, or destroy all sorts of unique and useful technological innovations.
Forrest also tries to distinguish this ruling from the Perfect 10 cases and the Flava Works case -- even admitting that other 2nd circuit courts have used the server test. But, she says, they were all different -- doing things like only using the server test for the distribution right, but not the display right, or not really endorsing the server test and ruling on other reasons.
Forrest also points to a trademark case that involved an embedded image which was found to be infringing -- but that's entirely different. The rules for trademark infringement are completely different than the exclusive rights related to copyright. With trademark, it's not as specific, and the use of someone else's logo broadly (as happened in the case cited) could easily be infringing on the trademark, but that doesn't get to the copyright question which involves much more carefully limited rights.
But, most troulbing of all, Forrest argues that the server test... is just wrong:
The Court declines defendants’ invitation to apply Perfect 10’s Server Test for two reasons. First, this Court is skeptical that Perfect 10 correctly interprets the display right of the Copyright Act. As stated above, this Court finds no indication in the text or legislative history of the Act that possessing a copy of an infringing image is a prerequisite to displaying it. The Ninth Circuit’s analysis hinged, however, on making a “copy” of the image to be displayed—which copy would be stored on the server. It stated that its holding did not “erroneously collapse the display right in section 106(5) into the reproduction right in 106(1).” Perfect 10 II, 508 F.3d at 1161. But indeed, that appears to be exactly what was done.
The Copyright Act, however, provides several clues that this is not what was intended. In several distinct parts of the Act, it contemplates infringers who would not be in possession of copies—for example in Section 110(5)(A) which exempts “small commercial establishments whose proprietors merely bring onto their premises standard radio or television equipment and turn it on for their customer’s enjoyment” from liability. H.R. Rep. No. 94-1476 at 87 (1976). That these establishments require an exemption, despite the fact that to turn on the radio or television is not to make or store a copy, is strong evidence that a copy need not be made in order to display an image.
Except... that's still very different. That's still a case where the "small commercial establishments" are showing the work. In this case -- and the very reason why the server test is so important -- the content in question is never on the publisher's premises or server. It only appears on the end user's browser, because that browser goes and fetches it.
Even more bizarre, Forrest argues that Perfect 10 and the server test are different because the image is displayed on the end user's computer:
In addition, the role of the user was paramount in the Perfect 10 case—the district court found that users who view the full-size images “after clicking on one of the thumbnails” are “engaged in a direct connection with third-party websites, which are themselves responsible for transferring content.” Perfect 10 I, 416 F. Supp. 2d at 843.
In this Court’s view, these distinctions are critical.
While this doesn't involve the end user "clicking" first to get the display, it's really no different. It is the end user who has the allegedly infringing content displayed on their computer, not the publisher. A direct connection is made between the end user and the hosting provider (in this case Twitter). The publisher never touches the actual content. Yet, Forrest argues that they can be direct infringers.
That's... wrong.
Despite the fact that EFF and others warned the court that this ruling would would massively upset the way the internet works, Forrest doesn't seem to believe them (or care)... because maybe fair use will protect people.
The Court does not view the results of its decision as having such dire consequences. Certainly, given a number as of yet unresolved strong defenses to liability separate from this issue, numerous viable claims should not follow.
In this case, there are genuine questions about whether plaintiff effectively released his image into the public domain when he posted it to his Snapchat account. Indeed, in many cases there are likely to be factual questions as to licensing and authorization. There is also a very serious and strong fair use defense, a defense under the Digital Millennium Copyright Act, and limitations on damages from innocent infringement.
That's... also wrong. Yes, publishers may be protected by fair use or other defenses. But fair use is much harder to get a ruling on at an early (summary judgment) stage in a case (a few courts are starting to allow this, but it's not all that common). Having the server test be good law would prevent a flood of these kinds of cases from being filed. Without it, people can troll media sites that embed tweets and go after them, leading to long and costly litigation, even if they have strong fair use defenses. Also, the reference above to releasing the image "into the public domain" is nonsensical. No one is arguing that the image was in the public domain. It is clearly covered by copyright.
Given what a total and complete mess this ruling will cause on the internet should it stand, I fully expect a robust appeal. The 2nd circuit can be a mixed bag on copyright, but often does a pretty good job in the end. One hopes that the 2nd circuit reverses this ruling, endorses the server test, and keeps the internet working as it was designed -- where embedding and linking to content doesn't magically make one liable for infringement.
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Filed Under: copyright, display rights, duck, embedding, justin goldman, katherine forrest, quacks like a duck, tom brady
Companies: boston globe, breitbart, gannett, vox, yahoo
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Actually, teh whole internets may not be workable. It's again rights in conflict, and again, I say that (in the US), Constitution is explicit, where "embedding" results in too-close a likeness of ducks.
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Re: Actually, teh whole internets may not be workable. It's again rights in conflict, and again, I say that (in the US), Constitution is explicit, where "embedding" results in too-close a likeness of ducks.
None of what you said makes any sense in the real world. You would seriously call for the destruction of the internet as a whole just because you think it violates some weird twisted version of what rights someone has?
Also, the Constitution is NOT explicit in this case. For the Constitution to be explicit, it would have to say something like "you cannot embed links to infringing content in your website". I know language is hard for you but do try to keep up.
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Re: Re: Actually, teh whole internets may not be workable. It's again rights in conflict, and again, I say that (in the US), Constitution is explicit, where "embedding" results in too-close a likeness of ducks.
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Here is an argument why embedding is infringement
Now if embedding content would be fine as long as the original is hosted by the copyright owner would mean that you could just point a webcam at the Eiffel Tower and since it only referred to the current state of the Eiffel Tower without making a permanent representation, you could just keep the webcam on at night, allowing visual access to the Eiffel Tower lighting pattern.
I mean, just think of it.
Or don't bother. The copyright maximalists will come up with their own thoughts you never imagined possible.
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Re: Here is an argument why embedding is infringement
By referencing that copyrighted pattern, your post caused my brain to show it to me. Did you get permission from the copyright holder first?
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Maybe the sites that link to the infringing content have bigger pockets than the site that hosts same.
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Re:
It makes sense. Copyright owners do not have resources to go after every infringer. If those intermediate parties have no money, sueing them is no good, since you're never going to get the money back. But if someone with tons of money does the infringement, it suddenly becomes profitable to sue them and get the money from them. Copyright owners can actually choose who to sue -- they don't need to sue everyone who infringes.
Copyright owners cannot go to every infringer on the planet, there simply is too many of them. Instead they can pick and choose worst offenders and hope the case is watertight.
This is also why it's bad that pirates eat copyrightowners market with pirated copies. Since copyright owner cannot reach everyone on the planet, end users need to do extra effort to reach authorised vendor instead of pirated copy. This is why permission is required from everyone -- you need to be sure that whoever provides the content is actually the owner or his distributor and transfers money to the original authors.
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Judge (can't see the) Forrest
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So where does "copying" end?
Is it copying techdirt if I tell someone where to find my favorite website? For that is all a link is...directions to find a website.
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Embedding is also not a core technology of the internet and eliminating embedding won't destroy the net. It is just a convenience.
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Re:
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Re:
It's not just a convenience.
And if embedding infringing content becomes illegal, then no one will embed ever (even to non-infringing content) because it would be impossible to track down every single embed or keep track of whether it suddenly became copyrighted and therefore infringing.
Additionally, if you make embedding to infringing content illegal, it's a very short step to making just linking to it illegal and regardless of what you think about embedding, applying that to linking WILL break the internet. Period.
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Re:
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from the proofreading dept
Oh, is this case related to Twitter's "firehose" feed?
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I can't dismiss this quite so casually.
You could publish a document locally, full of infringing images hosted on another server in another country beyond the reach of the legal system. A denial of responsibility doesn't hold much credibility, because the end user only saw them because they were embedded in YOUR publication. The user wouldn't even know that they were hosted elsewhere.
On the other hand, embedding tweets changes this. Now you're embedding Twitter's documents, which in turn contain the infringing image. Twitter hosts it.
Which means that now you're into CDA 230 territory. The person who posted the tweet is the one responsible.
Which leads to another issue: If you claim damages over the original infringing tweet, should the tweeter be held responsible for vastly greater damages because major news organizations re-tweeted it? I would argue against it.
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Re:
If I tell you where crimes are happening in your city, am I responsible for those crimes? You wouldn't have known about them.
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Re: Re:
(Possible exception: Repeating slander and defamation. Many news sources will report that a defamation lawsuit has been launched, without repeating the claim that sparked it unless they can independently verify the claim.)
Embedding off-site infringing images in your publication on the other hand is a way to profit off of infringement while saying "not responsible!"
(And again, I'm making a distinction between that and embedding tweets.)
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Maybe someone here knows what case this is?
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Copyright diametrically opposed to free speech
Conflicts between the two will continue to get worse and worse until something big happens to clarify.
Copyright Infringement should be about direct infringement. Not linking. Not embedding. If you go after the direct infringement, then the links or embeds simply do not matter. And you can't find all the links or embeds anyway. So you would better spend your time chasing down the direct infringer, eg follow the link to its source. Leave third parties alone -- especially if the link or embed came from someone else, like a commenter or poster in an online forum.
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Re: Copyright diametrically opposed to free speech
The real solution is that the technology you use simply does not matter. The real issue is _displaying_ the content in your web site. If you build a web page, and it displays the content to the public, then all the content needs to be non-infringing.
All the details about how the displaying is being done does not matter. If user sees the content, you need to have a permission to display it. The embedding actually shows the content in your web page.
Real solution to this problem is actually create the content yourself. Then there is no problems with permissions, since the content is your own. Original content is the king, not cloned/copied/embedded/linked stuff. We want original content in the web pages, not
thousands of copies of the same stuff over and over again.
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Re:
This isn't a case of someone sneaking into a movie theater without a ticket, or downloading a pirated copy of a song.
This is the end user's browser contacting the server hosting the image (which is not infringing, since it's on the rightsholder's server), and saying, "hey, this other site told me to come here and load up an image, can you send it over?" and the rightsholder's site says, "sure, here you go!" when it just as easily could have said, "nope, sorry, we don't allow that."
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The whole server test is wrong.
The server test is just shorthand for this, especially when agency is exported to a third party advertiser, and the distinction of authorship is clear.
Or we could encourage embedding as it makes a single point of takedown possible and not improbable — if you can embed it, it might break but you are OK.
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The real problem is that the copyright laws are not equipped to handle the internet. If a “Rights Holder” sends an image thru an Internet service to anyone else without a copyright statement or watermark, they should lose their copyright protections. You can open the gate of your backyard and then get angry at someone when someone feeds your stray dog.
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Re:
internet makes it just easier to get a permission from copyright owner. It is puzzling why people who distribute the content are not using that option. Of course it's difficult to find out who is the copyright owner, but that's why most work has (c) information available, so that original author can be identified.
If you're not willing to get a permission, then next alternative is to create the content yourself, and after it's finished, you can try to get popular in the internet. Thus internet helps authors to market their products.
If you're worried that you don't see all the content that is available in china since the authors can't get their products to your local supermarket, then you need to ask your local supermarket to provide access to that product. Or order from their webshop. Internet helps there too.
So copyright laws are very well suited to work in the internet. All that technology actually helps authors to distribute their products.
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Copyright Decision
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Re: Copyright Decision
I will display mu work for free, but if a commercial organization links or embeds the work they should pay me seems more like sour grapes that an actual wrong.
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Copyright Decision
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Embedding is critical issue for copyrights
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Re: Embedding is critical issue for copyrights
Go and learn how the internet works, then get back to us.
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Re: Re: Embedding is critical issue for copyrights
You mean they built internet on top of copyright infringement?
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We've got out_of_the_blue, needs no introduction.
Maurice Ross, aka the John Steele/Malibu Media ascended fanboy, who insists that most if not all grandmothers/children/homeless people/dead people named in porn suits are guilty, and it's not fair that the judges are questioning the validity of their shoddy evidence.
tp, aka the guy who insists that he doesn't believe fair use exists, therefore fair use doesn't exist.
Damn, Masnick. Way to step on all those toes! Next time, do it harder.
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Re:
It's just that fair use is completely useless, if you need to fill tons of paperwork and get millions paid for the lawyers to get it ever considered, since fair use evaluation always seem to happen once the parties already burned millions in lawyers fees.
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Re: Re:
It's just that fair use is completely useless, if you need to fill tons of paperwork and get millions paid for the lawyers to get it ever considered, since fair use evaluation always seem to happen once the parties already burned millions in lawyers fees.
Congratulations, you just described every legal process in existence that requires some amount of deliberation.
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He also owns a major part of a music label specializing in gay music (which, to date, he has never so much as shown even a snippet of to verify if that fact is true), so he's got a major stake in making sure as many schmucks are found guilty as possible to keep the settlement machine rolling in the dough.
I'm certain the Wayback Machine will have archived many of Maurice's chest-thumping odes for the Nicoletti and Lipscomb.
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Re:
At the same time, Zada has managed to get out of paying the fines the law placed upon him by filing bankruptcy and making sure none of his personal assets could be seized.
Copyright enforcers are the bullies of the legal world, it seems. Can dish it out, but can't take it. And when you're scraping the bottom of the barrel in a profession that already gets a lot of flak for having a scummy reputation, that is saying a lot.
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Re: Re:
Those would be the people who actually get stuff done. Like they have products available and ready for market to consume. Then they laugh at their beards when people who can't create products want a piece of the action, without appropriate compensation.
You know, creating products isn't difficult - you just do the work instead of idling.
Seems everyone who actually managed to get something done, suddenly becomes copyright maximalist when the product is nearing completion.
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Re: Re: Re:
Your beard is just ridiculous.
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Re: Re: Re: Re:
But tp has got it in his hand that he is the master arbiter of IP law and we all know how that actually turns out.
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