Loyola University Chicago School of Law, JD 2019
The Internet has given millions of people the capability to share information with each other with just the click of a button. People have grown accustomed to learning about current events, researching, and gathering information all through digital news sources. Unfortunately, the ease of the Internet has also created complications with regulating how users share that information. As technology rapidly advances, the legal limitations concerning intellectual property rights have become blurred, resulting in different interpretations of the Copyright Act of 1976. This has complicated user compliance and created difficult questions for the courts to answer based largely on law that was created before many of the capabilities of the Internet existed. There is a need for consistency and balance in this area of the law so that copyright owners are afforded adequate protection and the Internet can continue to serve as an information gathering, content sharing platform without fostering infringement.
In 2016, Tom Brady and the general manager for the Celtics, Danny Ainge, were walking in the Hamptons when Justin Goldman snapped a picture of them. Goldman posted the photo to his Snapchat; the photo quickly went viral via Twitter. Sports fans and news sources embedded the photo into tweets, sparking rumors that Brady was helping the Celtics recruit NBA player Kevin Durant. This chain of events sounds like the typical photo sharing via Twitter. However, after a ruling by a judge in the Southern District of New York, this content sharing practice may no longer be so common and actually, illegal. In determining whether defendant news sources, including Breitbart, Yahoo, and Gannett Network, infringed Goldman’s exclusive copyrights by embedding the photo in their tweets, the court determined that webpage publishers do not escape infringement liability by embedding content rather than storing it on its own server. If this decision is upheld, the way users share content on social media sites will have to drastically change in order to comply with this new interpretation of the Copyright Act.
Infringing a Copyright Owner’s Exclusive Right to Public Display
Section 106 of the U.S Copyright Act grants owner of an original work the exclusive rights to do or authorize the public display of their work. After Goldman posted his photo of Brady and Ainge to his Snapchat, various news sources shared the photo by embedding it in a tweet. Goldman sued the news sources for infringing his exclusive right to display his copyrighted photograph, and the Southern District of New York found infringement. “Having carefully considered the embedding issue…when defendants caused the embedded Tweets to appear on their websites, their actions violated plaintiff’s exclusive display right…The fact that the image was hosted on a server owned and operated by an unrelated third party (Twitter) does not shield them from this result.”
Embedding vs. Linking
The difference between embedding content and linking content is where the content’s source data is stored. Linking a tweet with content means that the link source stores the actual data and information about how to present the data to the user; embedding a tweet with content means that Twitter’s server physically stores the content in the tweet, making it visible on a webpage. The news sources argued that by embedding the tweets with the photo, their servers were not storing the content, rather it was stored on Twitter’s, and therefore could not be held liable for infringing Goldman’s right of public display. Under the “server test” created by the Ninth Circuit Court of Appeals, it is likely defendants would have prevailed, however Judge Forrest rejected that test. Judge Forrest reasoned that the embedded image was nonetheless a public display of Goldman’s copyrighted photograph because the webpage publishers caused the image to appear, regardless of the fact that they were using Twitter to cause the photograph to be visible to users.
Future Implications on Internet Content Sharing
If the district court’s decision is upheld on appeal, the way users share content via Twitter, Pinterest, and other social media sites, will have to change in order to comply with this interpretation of the Copyright Act. The Electronic Frontier Foundation filed an amicus brief supporting defendants; the amicus brief included numerous examples of adverse implications this ruling could have on the future of digital news reporting and content sharing. Under this interpretation, news outlets could no longer embed images stored on third party servers without authorization from the copyright owner. Every digital news publisher that wants to include photos or videos in their articles will have to get authorization from the original source, rather than embedding the image taken from a third party. Twitter users cannot take screenshots of images displayed on Twitter or Snapchat and share them on their own social media pages. This ruling not only causes more potential for users to unknowingly face liability, but it causes unnecessary complications with regulating content sharing on the Internet.
The Internet allows millions of people to connect and share ideas and current events to spread knowledge to anywhere in the world. While it is important to protect authors’ rights in their original work, it is also important to foster widespread communication of information. Further legislation is required to clarify copyright law in regards to the Internet, as we get deeper into the digital age. The judiciary must interpret the Copyright Act of 1976 as it was written and amended. Many of the regulation issues surrounding intellectual property rights may be solved with updated legal provisions that pertain specifically to digital media. Not only will the judiciary be well-equipped to handle intellectual property cases, but the millions of Internet users can comply with the law and know whether their digital behavior is illegal or not.