UPDATE: On March 19, 2018, the district court granted the defendant’s motion for certification of the court’s February 15th partial summary judgment decision for interlocutory appeal to the Second Circuit. In allowing immediate appeal, the court agreed that its prior order “has created tremendous uncertainty for online publishers” and “given the frequency with which embedded images are ‘retweeted,’ the resolution of this legal question has an impact beyond this case.” We will closely follow the appeal of this important copyright issue.
A New York district court recently held that a host of online news publishers and media websites that embedded certain tweets (containing unauthorized uploads of plaintiff’s copyrighted photo) on their websites violated the plaintiff’s exclusive display right, despite the fact that the image at issue was hosted on a server owned and operated by an unrelated third party (i.e., Twitter). (See Goldman v. Breitbart News Network, LLC, No. 17-03144 (S.D.N.Y. Feb. 15, 2018)). In doing so, the court declined to adopt the Ninth Circuit’s so-called “server test” first espoused in the 2007 Perfect 10 decision, which held that the infringement of the public display right in a photographic image depends, in part, on where the image was hosted.
Under the “server test,” only a server that actually stored the photographs and “serves that electronic information directly to the user (`i.e., physically sending ones and zeroes over the Internet to the user’s browser’) could infringe the copyright holder’s rights.” In its ruling, the Goldman court granted the plaintiff’s motion for partial summary judgment, and determined that the reasoning of the Perfect 10 decision, which applied to a search engine’s image search function and display of full-size images hosted on third-party servers to a user, was not applicable to the embedding practices the media sites engaged in. Continue Reading