Federal judge rules that embedded tweets can represent copyright infringement

A recent ruling by a New York federal judge could have significant implications for how copyright laws are enforced.

The ruling was made in a case where Justin Goldman accused publications including Breitbart, Time, Yahoo, Vox Media and the Boston Globe of violating his copyright by embedding into their stories tweets with his photo of New England Patriots quarterback Tom Brady. Goldman had posted the photo to Snapchat, but it went viral and other users subsequently uploaded it to Twitter.

According to The Hollywood Reporter, the photo in question was a picture of Brady, Boston Celtics general manager Danny Ainge and others, and it was used in stories about whether Brady might help the Celtics recruit Kevin Durant.

The publishers had asked for a summary judgment in this case, based on what’s known as the “server test” — where the liability for copyright infringement is determined by whether an image is hosted on the publisher’s server, or if the publisher just embedded or linked to an image that’s hosted elsewhere.

Judge Katherine Forrest argued that the server test has not been applied widely outside the Ninth Circuit. She wrote:

The plain language of the Copyright Act, the legislative history undergirding its enactment, and subsequent Supreme Court jurisprudence provide no basis for a rule that allows the physical location or possession of an image to determine who may or may not have ‘displayed’ a work within the meaning of the Copyright Act … Nowhere does the Copyright Act suggest that possession of an image is necessary in order to display it. Indeed, the purpose and language of the Act support the opposite view.

This ruling doesn’t mean the publishers have lost the suit — it simply rejects their motion for summary judgment. However, it’s already drawn criticism from the Electronic Frontier Foundation, which called the server test “a foundation of the modern Internet.”

“We hope that today’s ruling does not stand,” wrote the EFF’s Daniel Nazer. “If it did, it would threaten the ubiquitous practice of in-line linking that benefits millions of Internet users every day.”