Appeals Court Won't Take Up Copyright Decision That Raised Alarm About Embedding, Linking

The 2nd Circuit denies an immediate appeal in a case that challenges how news organizations used embedded photos of Tom Brady.
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New England Patriots quarterback Tom Brady

Back in February, a New York judge caused a bit of a freakout by issuing a copyright decision regarding the embedding of a copyrighted photo of NFL superstar Tom Brady. Now comes another surprise with potentially big ramifications to the future of embedding and in-line linking: The 2nd Circuit Court of Appeals has denied an interlocutory appeal.

Justin Goldman is the plaintiff in the lawsuit after finding the photo of the New England Patriots quarterback he shot and uploaded to Snapchat go viral. Many news organizations embedded social media posts that took Goldman's photo in stories about whether the Boston Celtics would recruit NBA star Kevin Durant with Brady's assistance.

Breitbart, Heavy Inc., Time Inc., Yahoo, Vox Media, Gannett Company, Herald Media, Boston Globe Media Partners and New England Sports Network were defendants in the lawsuit, but many of these companies have since settled.

Heavy has not, and in February, U.S. District Court Judge Katherine Forrest shocked many legal observers with a decision that refused to apply the "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.

Although the Server Test has been adopted in other jurisdictions, Forrest wrote, "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."

She added, "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 defendants in the case had warned that such a decision would "cause a tremendous chilling effect on the core functionality of the web," and once the ruling was issued, the News Media Alliance, the Association of Magazine Media, E.W. Scripps Company, the Electronic Frontier Foundation and Public Knowledge urged Forrest to certify an interlocutory appeal.

They highlighted the stakes.

"Absent an immediate appeal of the Order, the continued application of the server test in this jurisdiction will remain unsettled during the pendency of this action," stated an amicus brief. "In the meantime, plaintiffs will inundate the courts in this District with copyright infringement lawsuits arising from the display of embedded content and in-line linking, uses which were previously not thought to constitute direct infringement."

Forrest then gave her consent for an appeal over what she determined to be a "high-impact copyright case" where a difference of opinion was possible.

There was every reason to believe the 2nd Circuit would then also agree to tackle the case, but it won't. On Tuesday, a 2nd Circuit clerk provides notice of a denial with word that an immediate appeal is "unwarranted."

As a result, Goldman's case will proceed back at the district level and seems headed to trial. An appeal that's post-judgment is possible; that is, if the case doesn't settle. There certainly will be a lot of interested parties hoping this case proceeds swiftly to resolve legal uncertainties. There will also be others — particularly photographers — who will be quite satisfied by the latest interpretation of the Copyright Act. Should this case eventually get to an appeal, it stands a decent shot at ending up at the Supreme Court.