Federal Judge Says Embedding a Tweet Can Be Copyright Infringement

This could change the internet as we know it.

Federal Judge Says Embedding a Tweet Can Be Copyright Infringement

Rejecting years of settled precedent, a federal court in New York has ruled [PDF] that you could infringe copyright simply by embedding a tweet in a web page. Even worse, the logic of the ruling applies to all in-line linking, not just embedding tweets. If adopted by other courts, this legally and technically misguided decision would threaten millions of ordinary Internet users with infringement liability.

This case began when Justin Goldman accused online publications, including Breitbart, Time, Yahoo, Vox Media, and the Boston Globe, of copyright infringement for publishing articles that linked to a photo of NFL star Tom Brady. Goldman took the photo, someone else tweeted it, and the news organizations embedded a link to the tweet in their coverage (the photo was newsworthy because it showed Brady in the Hamptons while the Celtics were trying to recruit Kevin Durant). Goldman said those stories infringe his copyright.

Courts have long held that copyright liability rests with the entity that hosts the infringing content—not someone who simply links to it. The linker generally has no idea that it’s infringing, and isn’t ultimately in control of what content the server will provide when a browser contacts it. This “server test,” originally from a 2007 Ninth Circuit case called Perfect 10 v. Amazon, provides a clear and easy-to-administer rule. It has been a foundation of the modern Internet.

Linking is one of the most valuable and integral tools on the net, it is essential for free expression and innovation. Hopefully this will be overturned.

If this ruling is appealed (there would likely need to be further proceedings in the district court first), the Second Circuit will be asked to consider whether to follow Perfect 10 or Judge Forrest’s new rule. We hope that today’s ruling does not stand. If it did, it would threaten the ubiquitous practice of in-line linking that benefits millions of Internet users every day.

Judge Katherine B.Forrest, an Obama appointee, is 54 years old so she should be aware of the affect this would have on the flow of the tubes. She's too young to be an internet dinosaur, right? Well, anyway, one would hope so.

I'm watching this one closely.

Share
up
27 users have voted.

Comments

linking to images. One has to wonder about what's next.

up
9 users have voted.
GreyWolf's picture

@JtC Yes, I read the entire opinion.

The court here is saying that an old defense was the "Server Test," meaning, is a copy of the photo on your servers, (or the server space you are renting.)

But there is a separate clause in the copyright act, which says that displaying a copyrighted piece that you aren't in possession of is also copyright infringement.

So, in the separate diary here about In These Times, I downloaded a photo, and then uploaded it to here, (Server Test infringement,) but I could have just linked to the location of the photo, (Display Test infringement). The court says that doesn't matter under the Display test, that the user still sees the photo. (The defense for my "borrowed" photo would be, under both tests, newsworthy fair use.)

The Defendants asked that the case be thrown out. That is what has been denied. The case goes on. The judge told the Defendants they still have many defenses available.

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.

EFF is misreading the opinion when they say "inline linking." The judge is on top of it. She is talking about "inline display" of a photo, (meaning the reader did not click a link for the photo to appear. The webpage author made the photo appear, regardless of where it resides.) EFF is doing a dis-service to its readers by conflating inline linking with inline display.

up
11 users have voted.

@GreyWolf
that is causing me to rethink allowing members to upload images to the c99p server.

up
3 users have voted.
hecate's picture

@JtC
a single federal judge in the Southern District of New York, ruling on a motion for summary judgement. Her finding in this case that the defendants cannot avail themselves of "the Server Test" is not binding even on the other judges in her district, much less on those in the other 93 federal judicial districts in the US. Too, as GreyWolf points out above, she strongly hints the defendant can press alternative defenses; besides the remarks GreyWolf quoted, she also refers to "as of yet unresolved strong defenses to liability separate from this issue." With respect, methinks it's too soon to order everyone into the lifeboats, captain. ; )

up
10 users have voted.

@hecate
thx.

up
6 users have voted.
Not Henry Kissinger's picture

@JtC

The ruling is not precedent for anything at this ultra early stage, and most likely never will be.

up
4 users have voted.

The drama of the deep state in full factional meltdown makes Mario Puzo look like a dime store hack.

Wink's picture

rights bull$h!t.

up
7 users have voted.

the little things you can do are more valuable than the giant things you can't! - @thanatokephaloides. On Twitter @wink1radio. (-1.9) All about building progressive media.

@Wink
It's a decision by a federal judge that takes effect until or if it is struck down. If this stands it may open the door for further restrictions.

up
7 users have voted.

we little people will be priced out of access to what is likely the most important tool for civilization.
I intend to study smoke signals to prepare for the future.

up
12 users have voted.

@on the cusp
That seems like the ultimate goal:

With this and the likely end to net neutrality, we little people will be priced out of access to what is likely the most important tool for civilization.

The Matrix is being built right before our eyes. We oldtimers can see it clearly since we remember the days of yore when freedom was much less restricted. The youngsters of today will be more willing to accept the virtual shackles as for them it seems to be the norm. I wonder, as they grow older, what they will look back upon as "the good old days".

up
14 users have voted.

@JtC They will have never experienced what we oldsters did.
Maybe we can explain it to them with the smoke puffs.
I take this ruling very seriously. If they can do it with photos, they can do it with words.
I begin my days wishing I were more agile, more energetic, that my sight and hearing were better. In other words, wishing I were younger.
By the end of the day, I am glad I am old.

up
11 users have voted.

@on the cusp
would the future have to be to consider 2018 "the good old days"?

up
9 users have voted.

@JtC we are going to find out.

up
8 users have voted.
Wink's picture

the "kids" (under 30) becuz they simply didn't and don't believe the "fairy tale."
@JtC
They will buy in to whatever TPTB tell them.

up
4 users have voted.

the little things you can do are more valuable than the giant things you can't! - @thanatokephaloides. On Twitter @wink1radio. (-1.9) All about building progressive media.

OLinda's picture

Goldman took the photo, someone else tweeted it, and the news organizations embedded a link to the tweet in their coverage

This is a weird case. Sounds like the original photographer was mad because the links went to someone else who tweeted his photo. If the links went to his own web page, or if he had tweeted it and the links went to his tweet, he'd probably be fine. But he ended up not getting any credit. Of course no one knew it was his or if he had his own tweet or page, (I would guess).

Several times I've seen a really cool photo in a tweet and in the replies there will be several news orgs asking if they can use it. The tweeter usually says "Yes! with attribution."

There was one recently of Princes Harry and William with their wife & fiancee, that was taken by a regular person in the crowd. It was the best picture of them taken all day. It ended up being used all over, but I did see many news orgs asking permission. I think the photographer got some advice and eventually made some money on it.

up
13 users have voted.

- - - -
If you don't like the Mafia, why don't you join it and change it from the inside?

@OLinda
but I'll bet it's more about the fiats than the recognition. I hope it's overturned.

up
9 users have voted.
QMS's picture

@OLinda it's about money. Freedom of expression and open sharing is so uncapitalist.

...got some advice and eventually made some money on it

up
10 users have voted.

Listen to your higher mind.

divineorder's picture

Glad you are on this hope you keep us informed. Thanks for posting.

up
7 users have voted.

A truth of the nuclear age/climate change: we can no longer have endless war and survive on this planet. Oh sh*t.

@divineorder
upheaval that this ruling could cause, I have to believe that it'll be overturned. But who knows nowadays, it seems like anything goes when it comes to money and power.

I'm hyper vigilant about this because it's not clear to me who would be liable for the copyright infringement, the site owner or the poster of the image.

Hope you and JB are doing well.

up
9 users have voted.
Lookout's picture

and if you do, you better not tell anyone else.

I have not joined the twittersphere, but I thought the idea was to spread ideas?
But like most capitalist enterprises, the main purpose of Twitter is to make profits for those running the business (founders, investors, employees and more).

From a user's perspective, it may serve many purposes including but not limited to:

Keep an eye on trending events/news
Connect with like-minded people
Marketing or promotion of business
Stalk and spam
Vent out emotions or anger
Business Support
Finding and connecting with influencers

Makes sense for TPTB to limit access to the free flow of ideas. What if twitter were used to create a US of Amerika Spring uprising. They would shut it down...doncha think?

Thanks for the heads up....even this Luddite appreciates the warning.

up
6 users have voted.

“Until justice rolls down like water and righteousness like a mighty stream.”

If this holds up as the evident next step in censorship that it appears to be, everybody in the entire world, country by country, should all sue the hell out of the various spy agencies recording and accessing every freaking thing they say and do.

From 2012, an absolute must-read example of great journalism comprehensively showing the depths to which the whole mess has sunk and exactly who's the target - all of us, the people of the world:

(Emphasis mine)
https://www.wired.com/2012/03/ff_nsadatacenter/

James Bamford Security Date of Publication: 03.15.12.
03.15.12

The NSA Is Building the Country’s Biggest Spy Center (Watch What You Say)

... But “this is more than just a data center,” says one senior intelligence official who until recently was involved with the program. The mammoth Bluffdale center will have another important and far more secret role that until now has gone unrevealed. It is also critical, he says, for breaking codes. And code-breaking is crucial, because much of the data that the center will handle—financial information, stock transactions, business deals, foreign military and diplomatic secrets, legal documents, confidential personal communications—will be heavily encrypted. According to another top official also involved with the program, the NSA made an enormous breakthrough several years ago in its ability to cryptanalyze, or break, unfathomably complex encryption systems employed by not only governments around the world but also many average computer users in the US. The upshot, according to this official: “Everybody’s a target; everybody with communication is a target.

For the NSA, overflowing with tens of billions of dollars in post-9/11 budget awards, the cryptanalysis breakthrough came at a time of explosive growth, in size as well as in power. Established as an arm of the Department of Defense following Pearl Harbor, with the primary purpose of preventing another surprise assault, the NSA suffered a series of humiliations in the post-Cold War years. Caught offguard by an escalating series of terrorist attacks—the first World Trade Center bombing, the blowing up of US embassies in East Africa, the attack on the USS Cole in Yemen, and finally the devastation of 9/11—some began questioning the agency’s very reason for being. In response, the NSA has quietly been reborn. And while there is little indication that its actual effectiveness has improved—after all, despite numerous pieces of evidence and intelligence-gathering opportunities, it missed the near-disastrous attempted attacks by the underwear bomber on a flight to Detroit in 2009 and by the car bomber in Times Square in 2010—there is no doubt that it has transformed itself into the largest, most covert, and potentially most intrusive intelligence agency ever created.

In the process—and for the first time since Watergate and the other scandals of the Nixon administration—the NSA has turned its surveillance apparatus on the US and its citizens. It has established listening posts throughout the nation to collect and sift through billions of email messages and phone calls, whether they originate within the country or overseas. It has created a supercomputer of almost unimaginable speed to look for patterns and unscramble codes. Finally, the agency has begun building a place to store all the trillions of words and thoughts and whispers captured in its electronic net. And, of course, it’s all being done in secret. To those on the inside, the old adage that NSA stands for Never Say Anything applies more than ever. ...

Elsewhere, it's explained that they needed the room, in order to store the capture of every word and action of every person in every country of the world - billions of them and more coming online or otherwise becoming technologically vulnerable all of the time, to be snooped for posterity - not just regarding the phone and internet but of electronic purchases or anything that can be captured by any technology. This is pathology gone wild.

By 'code' they mean encryption; nobody's anything can be safe or private, it must all be vulnerable to hackers of all kinds so they can snoop around in it and to hell with everyone's security and human rights - TPTB wish to micromanage everyone in the world.

But if an internet user linking to a tweet violates copyright, those linking to, recording and sharing out access to the private communications and personal lives of all people in that manner among foreign spy agencies must also.

Edited to add a letter that didn't go through.

up
0 users have voted.

Psychopathy is not a political position, whether labeled 'conservatism', 'centrism' or 'left'.

A tin labeled 'coffee' may be a can of worms or pathology identified by a lack of empathy/willingness to harm others to achieve personal desires.