Embedding a Tweet Can Be Infringement, Court Says

Embedding a Tweet Can Be Infringement, Court Says

NEW YORK — To the consternation of many individuals and organizations that have embedded pictures and other content on social media platforms, a New York federal judge last week ruled that users can be held liable for copyright infringement if they embed a tweet posted by a third party.

The decision has been criticized by numerous observers in the case, including Above the Law’s Joe Patrice, who called the decision “just awful.”

“And it’s not even that it’s necessarily wrong … just awful,” Patrice wrote.

The ruling stems from a case initiated by Justin Goldman, who accused online publications — including Breitbart, Time, Yahoo, Vox Media and the Boston Globe — of copyright infringement for publishing articles that linked to a photo of NFL star Tom Brady.

In 2018, it is quite common for news sites to embed content posted by third parties, from videos to tweets.

But U.S. District Court Judge Katherine Forrest ruled last week that while those sites don’t host the content themselves, they can be held liable for copyright infringement.

The news sites, in their defense in the case, argued that they couldn’t be found liable for copyright infringement because content wasn’t hosted on their servers. Federal courts have long held that copyright liability rests with the entity that hosts the infringing content — not someone who simply links to it.

The defendants offered up the so-called “server test,” which stemmed from the 2007 9th U.S. Circuit Court of Appeals case involving the adult entertainment brand Perfect 10, which sued Amazon for infringement.

For years, the server test adopted in the adult entertainment company’s case against the online retailer has provided a clear, almost bright-line, rule.

But Forrest rejected the “server test” argument and ruled that the news organizations are liable.

“[W]hen 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,” Forrest wrote.

Forrest argued that the server test was established in the Perfect 10 v. Amazon Inc. case, which dealt with the “distribution” of content and not “displaying” infringing work.

But for those thinking the ruling has changed the playing field for passing around unauthorized content, think again. Perhaps it didn’t.

“The cries that ‘the sky is falling’ are foolish,” said industry attorney Marc Randazza of Randazza Legal Group. The decision “has not changed much.”   

“Essentially, the [ruling] says that if you steal someone else's image, but you do it by using web-browser magic to simply 'embed' the image, then you are still committing copyright infringement by displaying someone else's work without permission,” Randazza told XBIZ. “That's how copyright has always worked.  

“But, any decisions that make it harder to steal are always met with shrieks of apoplexy by the thieves.”

Forrest’s ruling doesn’t mean the publishers have lost the suit — it simply rejects the news sites’ motion for summary judgment.

Meanwhile the Electronic Frontier Foundation has publicly said that Forrest’s ruling shouldn’t stand.

EFF staffer Daniel Nazer noted the server test is “a foundation of the modern internet.”

If the ruling stands, he said, it “would threaten the ubiquitous practice of in-line linking that benefits millions of internet users every day.”

Related:  

Copyright © 2024 Adnet Media. All Rights Reserved. XBIZ is a trademark of Adnet Media.
Reproduction in whole or in part in any form or medium without express written permission is prohibited.

More News

Tyler Wu Guests on Chaturbate's 'Sex Tales' Podcast

Tyler Wu is the latest guest on Chaturbate’s “Sex Tales” podcast, hosted by Melissa Stratton and Vanniall on the company’s “Camming Life” YouTube channel.

Fleshy to Launch Interactive Cam Site 'Eremote'

Male pleasure brand Fleshy has announced that it will launch an interactive, bidirectional cam site next month called Eremote.

XBIZ LA Show Introduces New 'Crib Crawl' Feature

XBIZ is pleased to announce that the 2025 edition of its flagship conference, the XBIZ Show, will debut a brand-new feature: Crib Crawl, offering attendees the chance to meet and greet representatives from leading brands and organizations in dedicated suites at the host venue.

Pre-Nominations Now Open for 2025 TEAs

The pre-nomination period for the 2025 Trans Erotica Awards (TEAs) is now open.

Byborg Invests $22.35M in PLBY Group

Luxembourg-based Byborg Enterprises SA is investing $22.35 million in Playboy parent company PLBY Group.

Supreme Court to Hear Oral Arguments on Texas AV Law in January

The United States Supreme Court has scheduled oral arguments for Free Speech Coalition's challenge to Texas’ age verification law to take place Wednesday, Jan. 15.

2025 XBIZ Exec Awards Nominees for Online Industry Announced

XBIZ is pleased to announce the nominees for the online industry edition of the 2025 XBIZ Exec Awards, set to be presented as part of the annual XBIZ Honors ceremony on Wednesday, Jan. 15 in conjunction with the XBIZ 2025 conference.

Project 2025 Leader Claims Big Tech Companies 'Deliberately Fuel Pornography Addiction' Among Men

Heritage Foundation president and Project 2025 leader Kevin Roberts published on Wednesday the text of a speech in which he persists with his past claim that “predatory Big Tech corporations” are “deliberately fueling pornography addiction” among young men.

FSC Petitions 10th Circuit for Review of Utah AV Dismissal

Free Speech Coalition (FSC) on Wednesday petitioned the United States Court of Appeals for the 10th Circuit to review a decision handed down earlier this month by a three-judge panel of the same appeals court, which denied FSC the right to challenge Utah’s controversial age verification law by suing state officials.

MyAdultAttorney's Corey D. Silverstein to Hold Post-Election Legal Impact Webinar

Industry attorney Corey D. Silverstein will hold a “Legal Impact” webinar titled “We Have a New U.S. President: Legal and Community Implications” on Nov. 12 at 1 p.m. PST.

Show More