Embedding, also known as in-line linking, is a common way to share information on the Internet. Online publishers regularly embed Tweets, YouTube videos, and Facebook content into articles.
For example, almost every article about a Donald Trump tweet embeds the actual tweet, which is hosted by Twitter, within the article itself, fully available to read, even for those of us, ahem, who may have otherwise “blocked” the President’s tweets on the Twitter platform.
Put differently, embedding allows content from one location to be seen within the window of another, unrelated website. When you embed a tweet, an image, or a video, the content remains stored on the server from which it originated. The website doing the embedding (e.g., CNN) does not actually store the content (e.g., a Trump tweet) on their own servers.
Who Is Liable for Embedding Infringing Content?
So, if the embedded tweet actually infringes copyright, then who is responsible for that infringement? The server that is hosting the content or the website that embeds it or both?
In answering that question, courts have consistently upheld what is known as the “server test,” meaning that the server that is hosting the content is ultimately and absolutely responsible for copyright matters, not the website that merely links to or refers others to that content.
Therefore, if someone were to tweet a copyrighted image, then that image is hosted on Twitter’s servers, and it would be Twitter’s responsibility to take down the offending content.
Recent Court Opinion
However, a recent opinion by a federal court challenges the server test and has called into a question a lot of the advice many of us intellectual property attorneys have given our clients.
In Goldman v. Breitbart, the plaintiff, Mr. Goldman, took a photo of Tom Brady and posted it to his private Snapchat story. The photo was subsequently extracted from the private Snapchat story and reposted on several unaffiliated Twitter accounts. A number of major media organizations, including the likes of Yahoo and Time Inc., wrote articles that prominently featured the image by embedding the tweets into the web page.
In finding for the plaintiff, Judge Katherine Forrest of New York stated, “[When the] 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.”
In other words, embedding a Trump tweet or, as in this case, a photo of Tom Brady, in your online article may infringe copyright.
During the case, there was a lot of push back from the online community, including the Electronic Frontier Foundation (EFF), who filed an amici curiae arguing in support of the defendants. The EFF argues that because none of the publishers actually stored and displayed the image from their own servers, they had not infringed the copyright.
Case Distinguished on Facts
There is, however, an important distinction here that may prevent this case from throwing the entire Internet into disorder. As the plaintiff’s lawyer noted, Goldman never intended nor attempted to make the photo available to the public. This ruling would not, in his opinion, extend to any copyright holders who make their content public (on Twitter, for example). In his own words: “He did not put it in a tweet and did not authorize anyone else to.”
The court believes that this interpretation could benefit photographers and others who create visual content. Currently, there is no incentive for publishers to properly license an image if they could just embed it via some random Twitter account. While this case is specifically about images, this opinion could also apply to other mediums.
Still, the ruling at least adds a caveat to the well-established server test and, read broadly, may fundamentally alter it. At the very least, pending appeal, the advice to clients should be to proceed with a little bit more caution, especially when embedding content posted in a private forum and not intended for public consumption, unless there is a compelling First Amendment/public interest argument for making the content public.
 Note that embedding is different than merely linking, which is when a website includes hyperlink that actually takes you to the location of the content.
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