United States District Court for the Southern District of New York Rules Tweeting Embedded Photo Links May Infringe on Copyright

On February 15, 2018, the United States District Court for the Southern District of New York ruled that embedded tweets may violate a plaintiff's exclusive display right under federal copyright law.  Goldman v. Breitbart News Network LLC et al., No. 1:2017cv03144 - Document 169 (S.D.N.Y. 2018).  In Goldman, a copyright action involving a tweeted web link to an embedded picture of a famous sports figure, the court denied a defendant's motion for partial summary judgment. The court concluded that when Defendants caused the embedded tweets to appear on their websites, their actions violated Plaintiff's “exclusive display right" and the fact that the image was hosted on a server and operated by "an unrelated third party (Twitter) does not shield them from this result." (Id. at 2.)

The ruling specifically rejected the 9th Circuit's "Server" test under Perfect 10, Inc. v. Amazon.Com, Inc., 508 F.3d 1146 (9th Cir. C007), which stated that an image needed to be hosted directly on a server for it to be infringing, and "in-line linking" was not an infringement. (Id. at 844.)

The Goldman holding is relevant to California practitioners because in-line linking is considered by many to be a core internet function. If unchallenged, the finding would require a substantial restructuring of fundamental internet technologies, a comprehensive re-tooling of how the internet currently functions, and substantially impact the potential liability for copyright infringement by online media and social media companies. 

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This article was written by Joshua de Larios-Heiman, CIPP/US, who is the founder and managing director of Data Law, a boutique law practice.