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Brian Sutherland

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You might be aware that the President of the United States has a Twitter account. You might not be aware that each time he uses the account to post information about government business, the President opens a new “public forum” for assembly and debate. According to District Judge Naomi Reice Buchwald’s decision in Knight First Amendment Institute v. Trump, the government controls the “interactive space” associated with the President’s tweets and may not exercise that control so as to exclude other users based on the content of their speech. In other words, the District Court wrote, the First Amendment regulates the President’s conduct on Twitter and prohibits him from blocking other users from replying to his political tweets. Unfortunately, this ruling could backfire, so that a decision intended to promote free speech may instead degrade or limit it.

It works like this: the President or his aides sign in to his account, @realDonaldTrump, and submit content to Twitter – text, photographs and videos. Twitter serves that content to anyone who requests it via a web browser, i.e., it is visible to everyone with Internet access. If another user has signed in to their Twitter account, they may “reply” to the President’s tweets. A third user who clicks on the tweet will see the reply beneath the original tweet, along with all other replies. If the President has “blocked” a user, however, the blocked user cannot see the President’s tweets or reply to them as long as the blocked user is signed in to their account. The blocked user can still reply to other replies to the original tweet, and those “replies to replies” will be visible to other users in the comment thread associated with the tweet. The blocked user can still view the President’s tweets by signing out of their account. And they can still comment on the President’s tweets in connection with their own account or any other user’s account that has not blocked them from replying.Continue Reading Should the President’s tweets create a “public forum”?

Copyright holders have an exclusive right to display images and other works. For the last 10 years, news organizations and other website operators have relied on the Ninth Circuit’s opinion in Perfect 10, Inc. v. Amazon.com Inc., which established a bright-line server test for determining whether a website displayed a copy of an image, and thus potentially infringed upon the owner’s copyright in that image. Under the server test, a website operator displays an image if it sends a copy of the image from its server to the end user’s browser, but does not display an image if it merely embeds instructions (HTML) in its webpage that enable the end user’s browser to request the image from a third party’s server.

On February 15, 2018, in Goldman v. Breitbart News Network, LLC, District Judge Katherine B. Forrest of the Southern District of New York rejected the server test, throwing the door open to new copyright infringement suits in the Second Circuit and beyond. The moving defendants (which did not include Breitbart) had sought summary judgment on the issue whether embedding a link to an image constituted infringement. The court held that the defendants’ websites had displayed an image by embedding instructions in their webpages that enabled browsers to request an image owned by the plaintiff – a photograph of football player Tom Brady and others – from a third-party Twitter account. Under the court’s ruling, the defendants are liable for infringement unless they prevail on their defenses (such as fair use). Even if the district court’s partial liability ruling does not reach the Second Circuit, additional copyright infringement suits based on embedding are certain to follow, eventually leading to further review and possibly a circuit split that could wind up in the U.S. Supreme Court.
Continue Reading District judge in the SDNY: Embedding links to third-party web content is copyright infringement