ONE OF THE most ubiquitous features of the internet is the ability to link to content elsewhere. Everything is connected via billions of links and embeds to blogs, articles, and social media. But a federal judge’s ruling threatens that ecosystem. Katherine Forrest, a Southern District of New York judge, ruled Thursday that embedding a tweet containing an image in a webpage could be considered copyright infringement. The decision can be appealed, but if it stands and is adopted by other courts, it could change the way online publishing functions.
Here’s what happened: In 2016 Justin Goldman took a photograph of NFL quarterback Tom Brady and Boston Celtics president and manager Danny Ainge in the Hamptons and posted it to his Snapchat Story. The photo was newsworthy because at the time, the Celtics were reportedly trying to recruit NBA star Kevin Durant. It was interesting that the team’s manager brought along someone who played an entirely different sport. The photo soon went viral, and eventually was posted on Twitter and Reddit by several different users. Online publications including Breitbart, Yahoo, The Boston Globe, and Heavy.com then embedded the tweets into news stories. Goldman, backed by Getty Images, sued—arguing that the publications had infringed on his copyright to the photo.
This week, Judge Forrest sided with Goldman and argued that the publications violated his “exclusive display right,” despite the fact that they didn’t host the photo on their servers (more on that in a second). By simply embedding a tweet—a function which Twitter makes simple—Forrest says the publications engaged in a “technical process.” She readily admits that none of them downloaded the photo and then uploaded it to their own sites, but, she argues, it doesn’t matter that the publications weren’t hosting the photos themselves.
Judge Forrest based her decision on two foundational technology copyright cases. One is Perfect 10 v. Amazonfrom 2007, where the Court of Appeals for the Ninth Circuit ruled that Google could display full-size copyrighted images in search results, as long as it was simply linking to the content, not hosting it themselves. That case established what is known as the “server test”—the idea that the entity hosting the content should be liable, not someone who links to it.