On February 15, 2018, in Goldman v. Breitbart News Network, LLC, the U.S. District Court for the Southern District of New York found that Defendants’ embedded links to a ‘Tweet’ of a Tom Brady photo infringed Plaintiff’s copyright. In doing so, the Court declined to adopt the Ninth Circuit’s“ server test” for infringement of the display right, which not only signals a split of authority on that issue, but also has potentially far-reaching implications for the common practice of embedding social media links to populate web content.

At issue in the case was Plaintiff Goldman’s photograph of Tom Brady, which went viral on a number of social media platforms, including Twitter. Defendants embedded links to a Twitter post containing the photo on their websites for use in articles about Tom Brady’s efforts to recruit Kevin Durant for the Boston Celtics. Given that the Defendants never copied the photo onto their servers or computers, but rather linked to the photo using Twitter’s embedding function, their principal argument was that under the Ninth Circuit’s “server test” no copies had been made on Defendants’ servers, and thus Plaintiff’s display right was not infringed.

The Court disagreed, denying summary judgment to Defendants and sua sponte granting judgment to plaintiff. In doing so, the Court first discussed the Copyright Act’s transmit clause and legislative history, both of which broadly define the public display right to encompass ‘display’ by way of new and unforeseen technologies, e.g. embedded linking. The Court also relied on the Supreme Court’s decision in Am. Broad. Companies, Inc. v. Aereo, Inc., reasoning that new technologies cannot transform a volitional act (embedding links to a Tweet) into passive, non-actionable conduct. The Court further held that even the logic of the Aereo dissent—that Aereo’s conduct was not infringing because “subscribers call all the shots”— warrants a finding of infringement here because the decision to embed links is a conscious selection of copyrighted content. Am. Broad. Companies, Inc. v. Aereo, Inc., 134 S. Ct. 2498, 2514 (2014) (Scalia, J., dissenting).

Because Defendants’ principal defense relied on the Ninth Circuit’s decision in Perfect 10 v. Amazon, which applied the “server test” to “in-line linking,” the Court surveyed relevant case law, finding that the adoption of the “server test” was “scattered” at best. The Court first looked to the Seventh Circuit decision in Flava Works, Inc. v. Gunter, which adopted the “server test” but only as to contributory liability, while the lower court found that a “website’s servers need not actually store a copy of the work in order to ‘display’ it.” Flava Works, 2011 WL 3876910, at *4 (N.D. Ill. Sept. 1, 2011). The Court also identified four decisions from the Southern District of New York declining to adopt Perfect 10, as well as a trademark case that relied on the “seamless presentation” of plaintiff’s mark within defendant’s website to find infringement. Hard Rock Café Int’l v. Morton, 1999 WL 717995 (S.D.N.Y. Sept. 9, 1999). The Court also looked to a Texas district court case that distinguished Perfect 10 where defendant displayed content “as if it were its own.” The Leader’s Institute, LLC v. Jackson, 2017 WL 5629514 (N.D. Tex. Nov. 22, 2017).

Based on the analysis of the case law, the Court held that there was “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,” focusing on each Defendants’ copying of the Twitter embed code linked to Plaintiff’s photo, and concluding “that each and every defendant itself took active steps to put a process in place that resulted in a transmission of the photos so that they could be visibly shown.” In so holding, the Court returned to its discussion of Aereo, broadly reading it to say that “mere technical distinctions invisible to the user should not be the lynchpin on which copyright liability lies,” and reiterating that Defendants’ conscious choice to use Plaintiff’s content—absent from Aereo—weighed in favor of liability.

The Court expressly concluded that the Ninth Circuit had effectively collapsed the doctrinally distinct reproduction and display rights within 17 U.S.C. § 106, which it based on the text of various provisions of the Copyright Act, e.g. 17 U.S.C. § 110(5)(A). The Court explained that even if Perfect 10 was correctly decided, it was limited to its facts, i.e. specific to the search engine context, and thus did not apply here. The Court also briefly rebutted the parade of horribles that Defendants claimed would ensue should the Court find infringement, reasoning that given the many available defenses—including release into the public domain, license, authorization, fair use, the Digital Millennium Copyright Act, and limitations on damages from innocent infringement—such concerns were unfounded.

While the decision is sure to be appealed to the Second Circuit, this case puts users on notice that using embedding and other functionality to display third-party content could lead to copyright infringement liability.