When Justin Goldman took a photo of Tom Brady and posted it to Snapchat, he probably had no idea that it would go viral and have an extensive impact on social media and publishing. But, that’s exactly what it did.
In 2016, Goldman took a picture of Tom Brady, which he uploaded to Snapchat. The picture was then shared among Snapchat users and eventually made its way to Twitter. Several news outlets and publishers posted stories about the picture and even embedded the tweets and image into their own posts.
There was just one problem. Since Goldman never gave permission for others to display his photo, embedding the photo in subsequent posts exercised the right to display a work. The right to display a work is one of many rights that are exclusive to the owner of a copyrighted work.
Goldman went on to sue news outlets like Breitbart, Time, Vox and Yahoo, for copyright infringement. Even though the news outlets claimed they did not exercise the “display” right because the photo was never saved on their servers, the Southern District of New York disagreed.
In an order that was just issued, U.S. District Court Judge Katherine Forrest rejected the “server test” argument and ruled that the news organizations were liable.
“[W]hen 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,” Judge Forrest wrote.
The “server test” that the Defendants attempted to utilize comes from the historic case, Perfect 10 v. Amazon, where a court ruled that a Google search could show full-sized copyrighted images, as long as it was simply linking to them from other sites. This established the so-called “server test,” which protects sites that display copyrighted content stored on someone else’s server.
Judge Forrest noted that the “server test” isn’t well-established law and that several other courts have declined to adopt it. She also argued that the server test dealt with the ‘distribution’ of content and that this case was about ‘displaying’ an infringing work instead, an area where the law is not as clear.
“Google’s search engine provided a service whereby the user navigated from webpage to webpage, with Google’s assistance,” she wrote. “This is manifestly not the same as opening up a favorite blog or website to find a full-color image awaiting the user, whether he or she asked for it, looked for it, clicked on it, or not.”
Many rightsholders, including Goldman himself, are very happy. Others, including the Electronic Frontier Foundation (EFF), are not. EFF worries that if the current decision stands, it will put millions of Internet users at risk. “Rejecting years of settled precedent, a federal court in New York has ruled that you could infringe copyright simply by embedding a tweet in a web page,” EFF wrote in a statement.
Some are speculating that an appeal is on the horizon. Until then, social media users and news outlets should be wary of what they repost and retweet.