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