A few months ago, a federal district court in New York held that several publishers violated a photographer’s copyright when they embedded a photograph from one of the photographer’s Twitter posts. Goldman v. Breitbart News Network, No. 17-CV-3144 (KBF) (S.D.N.Y. Feb. 15, 2018). The photographer, Justin Goldman, had sued Breitbart News Network, TIME Inc., The Boston Globe and other online publishers last year for copyright infringement, alleging they displayed in various online news stories, without permission, a photograph he took of New England Patriots quarterback Tom Brady, which he had posted on Twitter.
In their defense, the publishers invoked the “Server Test,” based on the prominent Ninth Circuit decision, Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007), which held that the unauthorized display of Google Image search engine results, of photographs stored on third-party servers, did not constitute copyright infringement, provided that such images were not hosted on Google’s servers. Essentially, the Server Test provides that website publishers are not liable for copyright infringement if they embed content hosted on third-party servers, but not their own servers.
But in the Goldman case, the New York court (under the jurisdiction of the Second Circuit), questioned the validity of the Ninth Circuit rule, because the court concluded that the Copyright Act does not require physical possession of the copyrighted material. The court relied on Supreme Court precedent supporting that merely transmitting copyrighted material can constitute infringement, regardless of “invisible” technical distinctions regarding the means of the infringing display or distribution, see American Broadcasting Co.s, Inc. v. Aereo, Inc., 134 S. Ct. 2498 (2014). Therefore, the court declined to apply the Server Test, and concluded that the publisher defendants “violated plaintiff’s exclusive display right [and] 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.”
Furthermore, the court emphasized a “critical” distinction with Perfect 10 regarding the “paramount” role of the user. The web users in Perfect 10 were required to click on the thumbnail images in the Google Image search, in order to see the full-size images hosted on third-party servers. By contrast, in the Goldman case, visitors to the defendants’ websites would immediately see the full-size image, without any volitional act of clicking to connect to a third-party server.
On March 19, the district court granted the publisher defendants’ motion to certify the decision for interlocutory appeal to the Second Circuit, acknowledging the parties’ representations that the decision created “uncertainty for online publishers” with a significant “impact beyond this case” due to the popularity of Twitter and “retweeting.” Some commentators, such as the Electronic Frontier Foundation, suggest that the Goldman decision threatens in-line linking and, if followed by other courts, could require monumental changes to online news publishing. One amicus brief in the New York case also predicted that the Goldman ruling will “transform the internet as we know it.” While some of these gloomy predictions may be overstated based on a single district court decision, the appeal to the Second Circuit will certainly be closely watched, so stay tuned for updates.