On Thursday, a New York federal judge gave her final ruling on a case involving a lifted Snapchat of Tom Brady, several embedded tweets, and a modern interpretation of copyright law. Her decision will likely have a profound impact on the way we use the internet, according to open internet advocate Electronic Frontier Foundation (EFF).
In 2016, Justin Goldman posted a photo of football player Tom Brady on Snapchat. Someone other than Goldman uploaded the photo to Reddit, where it quickly went viral and circulated on Twitter and other platforms. A number of publishers embedded tweets that included Goldman’s image in articles about Tom Brady news. Goldman sued the publishers that embedded the tweets — which included Breitbart, Time, Vox, and Yahoo, among many others — for copyright infringement.
Few expected Goldman to win, as publishers (and users) have been embedding and linking to other’s content for years, and it’s never been grounds for a successful copyright infringement suit. There’s more than a decade of legal precedent protecting simple links from claims of infringement, in large part because if the linked destination changes somehow, the linker has no control over what happens there. But embedding does present a slightly different case: The content is represented wholly on the page, which is not the case with a plain HTML link. However, if an embedded tweet is deleted, it is broken and no longer visible on the page where it’s embedded.
“Courts have long held that copyright liability rests with the entity that hosts the infringing content—not someone who simply links to it,” writes the EFF in a statement. “The linker generally has no idea that it’s infringing, and isn’t ultimately in control of what content the server will provide when a browser contacts it. This “server test,” originally from a 2007 Ninth Circuit case called Perfect 10 v. Amazon, provides a clear and easy-to-administer rule. It has been a foundation of the modern Internet.”
Yet, according to U.S. District Court Judge Katherine Forrest, none of this matters. “Having carefully considered the embedding issue, this Court concludes... that when defendants caused the embedded Tweets to appear on their websites, their actions violated plaintiff’s exclusive display right,” she wrote, “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.”
The potential implications of this ruling are frankly terrifying. Users have always been free to share and link to new information as they see fit, without fear of retribution. If these outlets had only linked to the tweets without embedding, they might have been at risk of legal action but reasonably safe: This week, a court dismissed a lawsuit where Playboy accused the site BoingBoing of copyright infringement for linking to — but not embedding or or replicating — a collection of Playboy spreads that had been posted online by a third party. The defendant publications wrote that they believed their case, if not decided in their favor, could have “a tremendous chilling effect on the core functionality of the web.” If the decision ends up being adopted by other courts, they’ll be right.