This week a New York federal court judge ruled the act of embedding a tweet could be considered as copyright infringement. A ruling which if upheld could result in a fairly dramatic change to the way in which users, and media sites, make use of embedded tweets. Although, in spite of Judge Katherine B. Forrest making the ruling, Judge Forrest explained that this ruling should not necessary impact on similar cases.
While tweet embedding is fairly common practice in the media, what makes this case slightly different to any other alleged copyright infraction is the method by where the content of the tweet was distributed. The original plaintiff, Justin Goldman, released an image of Tom Brady on Snapchat. That image was then picked up by others and subsequently shared by some on Twitter. From there, a number of court-named high profile media outlets reported on the news angle suggested by the Brady image, while also including an embedded tweet to substantiate the origins of the story, and the image. Of course, those tweets were not from Goldman, and therefore Goldman argued how the exclusivity rights associated with the image had been infringed upon.
Generally speaking, embedded tweets have always been considered ‘fair game’ due to what many assume to be the backbone measurement of online copyright infringement, the ‘Server Test,’ a benchmark formed in the wake of a ruling in a well-known case, Perfect 10 vs Amazon. This is where an assumption is made that if someone is simply linking to content (sometimes referred to as “sourcing”) and not actually storing the content on their server (with the link itself acting as a bridge between the consumer of the content and the origins of the content) the use of the content passes the Server Test. While an embedded tweet follows along the principle of linking to content hosted on a third-party server - many understand this to mean there is no infringement taking place. However, Judge Forrest suggests in this particular case, and in addition to the argument Goldman had not made the image available in the public domain, the technical use of code that embedded the tweet (thereby, embedding the content) is a fundamental difference and one where a Server Test defense cannot be applied. Essentially, while the content remained on a third-party site, Judge Forrest ruled the content’s location was irrelevant when it came to the consumption of the content - as the user did not have to search for, click through to, or initiate any other user-defined action to access the content. According to Judge Forrest, a defining difference where the shift of blame moves from the content-holder to the person/organization linking to the content.
While making the partial summary judgement in favor of the plaintiff, Judge Forrest did point out that the particulars of this case should not automatically have any bearing on other cases in the future, and therefore this ruling is unlikely to have the sort of industry-wide ramifications the defendants argued it would have. While also adding the defendants do maintain “a very serious and strong fair use defense” based on the Digital Millennium Copyright Act (DMCA).