In a case involving reuse by a number of media outlets of a link to a photo of Tom Brady taken and posted to Snapchat by a private plaintiff and reposted to Twitter, the District Court for the Southern District of New York, has raised a serious question about the propriety of publishing a link to someone else's content.
While the case is still at the preliminary stage and at this point is not binding precedent in any jurisdiction, it should still give pause to those seeking to freely include links in their publications. The court has ruled that such practice, may, but will not necessarily, be the basis for a copyright infringement claim by the party who originally posted the material online, whether on Snapchat, Twitter or elsewhere.
While the court expressly acknowledged the potential availability to those including the link of various legal defenses such as fair use and the Digital Millennium Copyright Act service provider safe harbor, which we have previously discussed in these pages, it made clear that there is no per se permission for inclusion of a link. The latter conclusion is contrary to the supposed conventional wisdom that there was no issue with such linking.
While acknowledging the difficulty presented in the application of copyright law dating back to 1976 and before to today's technology and media platforms, it also pointed to the decision of the US Supreme Court in the Aereo case, also discussed by us, for the proposition that differences in technical configuration and approach from an infringing practice will not, of themselves, save the alternative practice.
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.
Whether one is originally publishing online content or seeking to reuse that published by someone else, even with attribution, they should be mindful of this case as it wends its way through the courts and as the issue is taken up by other courts. In the first instance, it is probably most practical to determine whether the linking is protected by a fair use defense, which encompasses considerations such as, but not limited to, the amount of the original material which is reused, whether or not such use is commercial and whether there is a creative rationale, such as a critique for the reuse.