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In a huge surprise, a New York federal judge on Thursday delivered a blow to nine news organizations defending their use of a Tom Brady photo. The judge’s decision is sure to be controversial and could prove quite consequential, too, potentially disrupting the way that news outlets use Twitter and causing many in technology to re-examine ubiquitous practices from embedding to linking.
Justin Goldman filed the lawsuit after he snapped an image of New England Patriots quarterback Brady, Boston Celtics general manager Danny Ainge and others on a street in 2016. Shortly thereafter, he uploaded the photo to Snapchat. The photo then went viral, with others uploading it to Twitter. Subsequently, various news organizations embedded the tweets with the image in stories about whether the Celtics would successfully recruit basketball player Kevin Durant, and if Brady would help to seal the deal. Goldman sued some of these news outlets.
The original defendants in the lawsuit are Breitbart, Heavy Inc., Time Inc., Yahoo, Vox Media, Gannett Company, Herald Media, Boston Globe Media Partners and New England Sports Network. (Vox and Herald Media would settle claims.)
“When the Copyright Act was amended in 1976, the words ‘tweet,’ ‘viral,’ and ’embed’ invoked thoughts of a bird, a disease, and a reporter,” begins a summary judgment opinion from U.S. District Court Judge Katherine Forrest. “Decades later, these same terms have taken on new meanings as the centerpieces of an interconnected world wide web in which images are shared with dizzying speed over the course of any given news day. That technology and terminology change means that, from time to time, questions of copyright law will not be altogether clear. In answering questions with previously uncontemplated technologies, however, the Court must not be distracted by new terms or new forms of content, but turn instead to familiar guiding principles of copyright. In this copyright infringement case, concerning a candid photograph of a famous sports figure, the Court must construe how images shown on one website but stored on another website’s server implicate an owner’s exclusive display right.”
Ultimately, Forrest comes to the crucial decision.
“Having carefully considered the embedding issue, this Court concludes, for the reasons discussed below, that when defendants caused the embedded Tweets to appear on their websites, their actions violated plaintiff’s exclusive display right; 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,” she writes.
In the opinion (see below), the judge runs through an analysis of what Congress meant when it conferred display rights, saying lawmakers “cast a very wide net” even with technologies not yet invented. Forrest then tackles some very big copyright precedent including the Supreme Court decision in ABC v. Aereo, concerning a digital television operator which retransmitted copyright programming; Perfect 10 v. Amazon.com, concerning thumbnail images of naked models appearing in Google Image Search; and Capitol Records v. ReDigi, which dealt with secondhand sales of “used” digital sound recordings.
Many of these cases involved some application of the so-called “server test,” where the direct liability of a website publisher for copyright infringement turns on whether the image is hosted on the publisher’s own server or is embedded or linked from a third-party server.
But Forrest notes that outside of the 9th Circuit (California and surrounding states), the Server Test has not been widely adopted and so she feels free to either depart or hold that it’s not applicable to the facts of this case.
“The plain language of the Copyright Act, the legislative history undergirding its enactment, and subsequent Supreme Court jurisprudence provide 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 within the meaning of the Copyright Act,” the judge writes.
Adds Forrest, “Nowhere does the Copyright Act suggest that possession of an image is necessary in order to display it. Indeed, the purpose and language of the Act support the opposite view.”
The judge points to how the defendants actively took steps to display the Tom Brady photo by among other things including code in the design of their webpages. And she draws instruction from Aereo that no one should be absolved of liability upon purely technical distinctions. Forrest writes, “[I]n 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.”
Further, the judge places great emphasis on the role of the user.
“In Perfect 10, Google’s search engine provided a service whereby the user navigated from webpage to webpage, with Google’s assistance,” states the opinion. “This is manifestly not the same as opening up a favorite blog or website to find a full color image awaiting the user, whether he or she asked for it, looked for it, clicked on it, or not. Both the nature of Google Search Engine, as compared to the defendant websites, and the volitional act taken by users of the services, provide a sharp contrast to the facts at hand.”
Thus, Forrest rejects the summary judgment motion from the defendant news publishers that they are shielded from copyright liability by the fact that they were only providing images hosted by Twitter.
This doesn’t mean the news organizations have necessarily lost the case.
In response to a warning from defendants that a loss would “cause a tremendous chilling effect on the core functionality of the web,” the judge notes a number of unresolved strong affirmative defenses to liability.
“In this case, there are genuine questions about whether plaintiff effectively released his image into the public domain when he posted it to his Snapchat account,” Forrest writes. “Indeed, in many cases there are likely to be factual questions as to licensing and authorization. There is also a very serious and strong fair use defense, a defense under the Digital Millennium Copyright Act, and limitations on damages from innocent infringement.”
Here’s the full opinion:
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