Federal Judge Ruined The Internet Yesterday
It's a Copyright Act violation to embed a Tweet now. Ugh.
Judge Katherine B. Forrest has put up with a lot of ridiculous and horrible bulls**t in her tenure on the bench. So let’s establish off the bat that she doesn’t deserve most of the guff she takes.
But her decision yesterday in Goldman v. Breitbart, et More Respectable Outlets, is just awful. And it’s not even that it’s necessarily wrong… just awful. Read the whole thing here.
In a nutshell, the Goldman case is about a photo of Tom Brady and Danny Ainge. Plaintiff Justin Goldman took the picture and then uploaded it to Snapchat. The picture bounced around social media and ended up on Twitter. The defendants, a number of media organizations, “embedded” the tweets, allowing their readers to see the original tweets posted publicly on Twitter’s servers.
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Defendants argued for the “Server Test,” a modestly developed doctrine that basically says it’s only a violation if someone hosts the infringing image on their own server. It’s a sound and entirely necessary doctrine because otherwise Google would be bankrupt for showing previews of search results.
Judge Forrest went in the other direction:
Having carefully considered the embedding issue, this Court concludes, for the reasons discussed below, that 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.
That’s disturbing. Defendants had warned — without hyperbole — that walking away from the Server Test would “cause a tremendous chilling effect on the core functionality of the web,” and amici argued that it could “radically change linking practices, and thereby transform the Internet as we know it.”
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Why in the world would the Server Test not apply, according to Goldman?
He and his amici caution that to adopt the Server Test broadly would have a “devastating” economic impact on photography and visual artwork licensing industries, noting that it would “eliminate” the incentives for websites to pay licensing fees, and thus “deprive content creators of the resources necessary to invest in further creation.”
Then don’t put it on f**king Snapchat.
Look, I don’t know what to tell you, but if you wanted licensing fees for your work, go sign up with Getty or something. But if you’re going to post them on Instagram or Snapchat — the photography equivalent of scribbling “For a good image call…” on a bathroom wall — you shouldn’t get to walk in here and act like social media took food out of your kids’ mouths.
And this sentiment mirrors Judge Forrest’s parting words too:
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In this case, there are genuine questions about whether plaintiff effectively released his image into the public domain when he posted it to his Snapchat account. Indeed, in many cases there are likely to be factual questions as to licensing and authorization. There is also a very serious and strong fair use defense, a defense under the Digital Millennium Copyright Act, and limitations on damages from innocent infringement.
But this is the whole problem with this opinion that is Judge Forrest’s fault. Maybe she’s right and she’s just the messenger for a copyright regime in need of desperate overhaul in light of modern technology, years of lobbying mischief, and that nonsensical Aereo opinion. Or maybe she’s wrong and created an unnecessary and inefficient hurdle for media by creating a violation without realistic redress sparking frivolous lawsuits against media outlets for years to come.
But regardless of the substance, what really sucks about this opinion is her agreeing to the parties’ stipulation to sever the display-right issues from the defenses and force the court to put out an opinion lacking critical context. Now all we know is that embedding social media posts created by users for the express purpose of free public viewing is a violation. We just have to stay tuned to find out if it’s one that gets an outlet in trouble or not.
That’s all well and good when you’re managing a busy docket, but every media outlet in the country woke up this morning trying to figure out if they can report on the President without violating the Copyright Act.
(The full opinion is unironically embedded on the next page.)
Joe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.
