Judge Katherine Forrest of the federal court in New York, ruled on a motion that found that embedding a tweet containing a copyrighted photo (of Tom Brady) could create liability for copyright infringement.

the case is still in process (Goldman vs. Breitbart) and can’t be appealed until final. The ruling has potentially far-reaching implications as she specifically rejected the argument that the ruling could have a resounding effect on linking across the internet.

The Judge’s opinion and order (embedded below) say:

Here, it is undisputed that none of the defendant websites actually downloaded the Photo from Twitter, copied it, and stored it on their own servers. Rather, each defendant website merely embedded the Photo, by including the necessary embed code in their HTML instructions. As a result, all of defendants’ websites included articles about the meeting between Tom Brady and the Celtics, with the full-size Photo visible without the user having to click on a hyperlink, or a thumbnail, in order to view the Photo

According to the Electronic Frontier Foundation, “If adopted by other courts, this legally and technically misguided decision would threaten millions of ordinary Internet users with infringement liability.”  There is the defense of things like fair use, but if this type of ruling grows and gains real traction, it would slow down linking (at least embedding content).  A number of publishers wouldn’t want to have a potential liability laid in their lap.

The decision made by Judge Forrest is contrary to existing precedents that has come out of the US Ninth Circuit Court of Appeals, which held parties linking to infringing content hosted elsewhere are protected under the doctrine of fair use and not liable.  This case creates potential confusion and would give rise to additional lawsuits, even though district court decisions have limited value as precedents versus appellate court decisions.

The judge qualified her ruling, which is an interim decision (partly in an effort to mitigate criticism), by saying that there may be various available defenses to liability in this case:

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. 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.

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