Have you ever embedded or linked tweets on your blogs before? If you do, then based on a federal court ruling in New York, you might be subjected to copyright violation.

Justin Goldman, a photographer, accused various sites including Yahoo (a part of Engadget’s parent company, Oath)

Time, Breitbart, Boston Globe and Vox Media for violating his copyrights by embedding into their own stories tweet with his photo of Tom Brady, New England’s Quarterback.

The Judge approved, saying that such actions “violated plaintiff’s exclusive display rights”. Goldman posted the photo to SnapChat and went viral wherein many users subsequently uploaded it to Twitter.

The photo in question was Tom Brady, Danny Ainge (general manager of Boston Celtics) and others. The said photo was used in a story about Brady helping the Celtics recruit Kevin Durant in their team.

The accused publishers asked a summary judgment for this case, based on the “server’s test” in which the copyright infringement liability is determined by whether the publisher just linked or embedded to an image that is hosted elsewhere or an image that is hosted on the server of the publisher.

However, Judge Katherine Forrest argued that the “server test” is not applied outside the Ninth Circuit.

“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 … 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 ruling does not mean the publishers lost the suit, but simply rejects their summary judgment motion. EFF or Electronic Frontier Foundation, however, criticize the judgment by saying that the server test is “a foundation of the modern internet”.

EFF’s Daniel Nazer, hopes that the ruling does not stand because if it did, it could mean that millions of people are infringing and “would threaten the ubiquitous practice of in-line linking that benefits millions of Internet users every day”.


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