In an important copyright ruling today, Judge Rakoff ruled that “embedding” material online — in this case, a news organization embedding in an article a video of a polar bear that the plaintiff posted on Instagram — could violate the copyright laws. He rejected the “server rule” by which there could only be infringement in cases where the defendant makes a copy of the image or video to display from its own server. Under the server rule, merely embedding the material (essentially, displaying the material via the original source) cannot be infringement.
Judge Rakoff found that the server rule was “contrary to the text and legislative history of the Copyright Act”:
The Act defines to display as “to show a copy of” a work, 17 U.S.C. § 101, not “to make and then show a copy of the copyrighted work.”
. . .
[T]he exclusive display right set forth in the Copyright Act is technology-neutral, covering displays made directly or by means of any device or process “now known or later developed.” The concept of “display” thus includes “the projection of an image on a screen or other surface by any method, the transmission of an image by electronic or other means, and the showing of an image on a cathode ray tube, or similar viewing apparatus connected with any sort of information storage and retrieval system.” H.R. Rep. No. 94-1476, at 64 (1976). The right is concerned not with how a work is shown, but that a work is shown.
Judge Rakoff was not persuaded by concerns that the server rule was necessary to avoid opening the floodgates to litigation:
Proponents of the server rule suggest that a contrary rule would impose far-reaching and ruinous liability, supposedly grinding the internet to a halt. These speculations seem farfetched, but are, in any case, just speculations. Moreover, the alternative provided by the server rule is no more palatable. Under the server rule, a photographer who promotes his work on Instagram or a filmmaker who posts her short film on You Tube surrenders control over how, when, and by whom their work is subsequently shown . . . .
Defendants argue that an author wishing to maintain control over how a work is shown could abstain from sharing the work on social media, pointing out that if [the plaintiff] removed his work from Instagram, the Video would disappear from [their] websites as well. But it cannot be that the Copyright Act grants authors an exclusive right to display their work publicly only if that public is not online.