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The Courts Businesses The Internet

Appeals Court Won't Take Up Copyright Decision That Raised Alarm About Embedding, Linking (hollywoodreporter.com) 117

Posted by msmash from the how-about-that dept.
The 2nd Circuit denies an immediate appeal in a case that challenges how news organizations used embedded photos of Tom Brady. The Hollywood Reporter: Back in February, a New York judge caused a bit of a freakout by issuing a copyright decision regarding the embedding of a copyrighted photo of NFL superstar Tom Brady. Now comes another surprise with potentially big ramifications to the future of embedding and in-line linking: The 2nd Circuit Court of Appeals has denied an interlocutory appeal. Justin Goldman is the plaintiff in the lawsuit after finding the photo of the New England Patriots quarterback he shot and uploaded to Snapchat go viral. Many news organizations embedded social media posts that took Goldman's photo in stories about whether the Boston Celtics would recruit NBA star Kevin Durant with Brady's assistance. Breitbart, Heavy, Time, Yahoo, Vox Media, Gannett Company, Herald Media, Boston Globe Media Partners and New England Sports Network were defendants in the lawsuit, but many of these companies have since settled.

Heavy has not, and in February, U.S. District Court Judge Katherine Forrest shocked many legal observers with a decision that refused to apply the "Server Test," where the direct liability of a website publisher for copyright infringement turns on whether the image is hosted on the publisher's own server or is embedded or linked from a third-party server. Although the Server Test has been adopted in other jurisdictions, Forrest wrote, "The plain language of the Copyright Act, the legislative history undergirding its enactment, and subsequent Supreme Court jurisprudence provide no basis for a rule that allows the physical location or possession of an image to determine who may or may not have 'displayed' a work within the meaning of the Copyright Act." She added, "Nowhere does the Copyright Act suggest that possession of an image is necessary in order to display it. Indeed, the purpose and language of the Act support the opposite view."
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Appeals Court Won't Take Up Copyright Decision That Raised Alarm About Embedding, Linking More

Appeals Court Won't Take Up Copyright Decision That Raised Alarm About Embedding, Linking

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  • Can someone summarize this for people like me who aren't too bright? Car analogy would be helpful too.

    • Re: (Score:2, Insightful)

      by Anonymous Coward

      Photographer takes a picture o someone. Posts it to Snapchat.

      Other news organizations run a story and include an embedded link to the picture.

      Photographer is a cunt, and sues.

      Moron luddite judge says "LOL I agree with cunt photographer".

    • I'm not sure either. But if I read it correctfully, then it would be copyright infringement for your news site to display Tom Brady's photo, even if your page linked or displayed the photo from a different website which hosts it.
      • Makes sense. So I should avoid photos of Tom Brady.

        • Makes sense. So I should avoid photos of Tom Brady.

          Sage words....even still true in contexts outside this particular case, just avoid anything Tom Brady in general.

          His wife, however...is another case, please, post lots of photos of her, especially if nude....I wonder how she'd look covered in grits?

      • Right. Even if you don't sell books, if you tell people where a bookstore is, and it turns out the bookstore sells some pirate copies of a book, you are now the person who infringed the copyright.

        This judge would say you're "displaying" the book by referencing where to get it, since you know that some people will take your advice and go to the store and get the book.

        • Just like some courts say that video evidence is less credible than the officer's report and sworn testiphony.
    • If you embed a tweet with a copyrighted image, and make money off it, someone will sue you. Doesn't matter (according to this judge) that the tweet image was served by Twitter. If you drive someone's car you've gotta pay the rent.
      • So basically the maxim "there are no free rides" is still in effect.

      • And that is exactly as it should be.

        Twitter / Instagram has the explicit right to display the image, given to them either by the photographer or through the users fair use. They do nothing wrong with fulfilling a HTTP GET request for the image. Instagram and twitter are actually all about sharing the posts / images, on these sites between users and that is why they exist and people upload stuff to them.

        The other websites on the other hand do NOT have the explicit permission of the photographer to display

        • Re: (Score:2)

          by Cederic ( 9623 )

          The other websites on the other hand do NOT have the explicit permission of the photographer to display the image on their site in any way.

          That's perfectly fine, as they don't display it on their site.

          It does not matter that they tell the client browser to get the image from twitter and display it within their own page instead of hosting it themselves

          Yes, it does. It means that they do not touch the photograph, do not copy the photograph, do not display the photograph, do not do a fucking thing to the photograph except tell people's browsers where it can be found.

          Sue the readers of the site, they're the ones accessing the copyrighted image.

          To add insult, they are using the image ( without permission ) to make money on these sites.

          I'm a photographer. I will get seriously pissed off at people that copy my images and exploit them commercially.

          I wont get pissed off at people that use th

    • Re:Summarize (Score:5, Informative)

      by CaptainDork ( 3678879 ) on Wednesday July 18, 2018 @11:54AM (#56968722)

      An interlocutory appeal causes the natural progression of a lawsuit to pause because there's a question of law that needs to be resolved before proceeding.

      In this matter, a citizen took a photograph and the media grabbed it and used the photo in news stories.

      Appreciate that the news agencies are making money, but the photographer is not.

      The interlocutory appeal is a request by the media, "Wait a minute! The photo is not stored on our servers. We don't take the position that we "own" it. We are simply embedding a shared photo from another place."

      U.S. District Court Judge Katherine Forrest shocked many legal observers with a decision that refused to apply the "Server Test," where the direct liability of a website publisher for copyright infringement turns on whether the image is hosted on the publisher's own server or is embedded or linked from a third-party server.

      So, the judge said, "We're not going to call a time out and create a sidebar court session to determine provenance because the photo belongs to the photographer and it don't make a flying rat's ass where it's stored."

      Photographers would benefit greatly if use of their work anywhere had to comply with copyright law.

      This action might impact embedded links, as well.

      Play like you are in your automobile as you read this and it will make a swell car analogy.

      • I made "vroom vroom" sounds while I was reading this and now I understand perfectly. Thanks

        • You're welcome.

          I don't know why in simple hell your question was modded down.

          Happened to me the other day.

          Good questions, particularly by those like we whose feet don't stink and we love Jesus, should be elevated so the Gentle Reader will see them and stuff.

      • Re: (Score:2)

        by mysidia ( 191772 )

        because the photo belongs to the photographer and it don't make a flying rat's ass where it's stored."

        Well, if it's on Twitter's servers, then that is huge, because Twitter's Terms of Service [twitter.com] then apply to the submitter.

        By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all med

        • ... make available ...

          That's what the whole goddam Internet does.

          Just because something is available, it's not necessarily in the Public Domain.

          How many times do we see a viral story where the thread is fraught (my new word for the day) with media requests, "Hi Sonja, this is ABC World News Tonight. May we use this? We will give you credit. Thanks."

        • I think that's what the judge is saying -- it's not a simple issue of the image not being served from a particular place, what matters is things like the terms of service you quote. Note that even the summary says that the photographer posted it on snapchat, not twitter. The point is that if you are making money off of an image, it is not enough to just assume that the source of that image has the royalty-free rights to it. The assumption should go the other way, assuming that some monetary rights arrang

          • Re: (Score:2)

            by mysidia ( 191772 )

            Note that even the summary says that the photographer posted it on snapchat, not twitter.

            Wait... that's no escape. To say they hadn't licensed it: the post to Snapchat would've likewise had to have been made without the
            photographer's permission (A violation of Snapchat's ToS).
            And then Snapchat has a similar set of terms of use for posters/submitters that provide an even broader license to the public.

            And yes: Just like Twitter, Snapchat provides an embed interface that allows other entitie

    • If you embed it in your page, are you responsible for it? Like ads, twitter posts, youtube vids etc. that youâ(TM)re not simply linking to but rather displaying as part of your own page. The theory so far has been that this is the sourceâ(TM)s problem and not the embedderâ(TM)s. This ruling can mean youâ(TM)re responsible for everything, like if the twitter post has a photo used illegally youâ(TM)re liable.

  • would be if the congress would take the time to understand the issue and bass and amendment to the copy rite act that would address many of these digital concerns so that judges who aren't competent could stop guessing.

    Of course it would be pretty cool if someone would mass market a flying car that you didn't need a piolets license for and cost less the $20K
    Lots of thing would be pretty cool i guess ;)

    • Last time Congress got together to make laws on this topic, we got the DMCA. Right now they're considering an extension of the terms of copyright. Congress doesn't represent you on this topic.
    • Nobody understands the issue because there are different ideas on how the "creative" process works. It taks time to fist produce a work and some people are faster than others. What are they actually doing? Is it just mining where they aren't actually coming up with something that is uniquely theirs, or is there something more that justifies that monopoly. I don't believe there is an I resent my freedom of expression being trampled upon by bad law.

    • would be if the congress would take the time to understand the issue and bass and amendment

      Lots of people are going to agree that congress doesn't take the time to understand the issues, or the amendments.

      But who in their right mind thinks congress doesn't understand bass?!? If you don't think they have time for fishing, you've never seen their schedule!

  • well (Score:2, Insightful)

    by cascadingstylesheet ( 140919 )

    Actually seems reasonable, as far as it goes.

    I don't think you'd get away with displaying even stock photography that you hadn't got permission for, just by linking to an instance of it on someone else's website. Try arguing that with Getty ...

    Whether that should be the law is open to debate, but it sounds like a reasonable application of existing law.

    • Re: (Score:2)

      by rsborg ( 111459 )

      Actually seems reasonable, as far as it goes.

      I don't think you'd get away with displaying even stock photography that you hadn't got permission for, just by linking to an instance of it on someone else's website. Try arguing that with Getty ...

      Whether that should be the law is open to debate, but it sounds like a reasonable application of existing law.

      I think it makes sense also. If my "website" uses the imagery even though it's stored on someone else's server, if I get hits/pageviews/ad money from that viewing, shouldn't that mean I'm responsible for the content therein? Otherwise it's profit without liability.

  • Because you're not in possession of the copyrighted image, but your mirror (the physical kind, not the server kind) is reflecting its image. Therefore, in the court's opinion it's a copyright violation. Brilliant reasoning.

    • Because you're not in possession of the copyrighted image, but your mirror (the physical kind, not the server kind) is reflecting its image. Therefore, in the court's opinion it's a copyright violation. Brilliant reasoning.

      If you somehow used a physical mirror (or series of mirrors?) to publicly display artwork that you didn't own or have rights to display, particularly if you profited from it, then, well, yes, that would likely be illegal.

  • displaying Tom's likeness, from both Tom and the NFL before posting it on snappychat? The logos on that shirt are under copyright as well. Slippery slopes and all that good stuff.

    • The logos are trademarks, not copyrighted.
      The photographer may not use those trademarks as the insignia for his football team, which is unrelated to the Patriots.

      As an example, the Mozzilla foundation can name their email software Thunderbird. Chevy can't name a sedan Thunderbird, because that would infringe on Ford's trademark using Thunderbird to brand a car. I can also write about a Ford Thunderbird, or photograph one.

      As to Brady's likeness, you can't use it without permission for an _exploitive_purpose_

      • Any image creates is copyrighted on creation. Basic understanding of the subject fail.

        • Sorry, it turns out your guess is wrong. There are several tests that must be met in order for an image to be copyright eligible. One of those tests is the threshold of originality.
          If you draw a typical stick figure, you can't copyright it because it'll look pretty much like every other stick figure. Production of the the image must require creativity, and must in some way reflect the personality of the artist - if pretty much everyone would draw about in about the same way, it can't be protected. Another

          • If it is copyright eligible it has copyright automatically when created.

            Congratulations for missing the point, and arguing a pedantic hair-splitting detail that was omitted merely because it is not relevant to the analysis.

            In general, when something is usually true, and also true in the specific case, and it is stated in an overly-broad way, it doesn't really cry out for correction, especially when you're dishonestly claiming it is "wrong." And that it was a "guess." No, it was the accurate truth in 7 words

            • I'm sure you know the difference between stupid and ignorant, or uniformed. A stupid person can't learn, an uninformed person hasn't learned yet. A smart person is someone who can learn new things.

              A smart person, when it's pointed out that team logos:
              https://goo.gl/images/7JBrwu [goo.gl]

              And the NFL logo:
              https://goo.gl/images/YSS5fB [goo.gl]

              can be and are used without copyright permission (in a way that doesn't infringe on their trademark), when they're given a link to the law and to example cases, can learn something new. "A

              • So what do you call a person who scans the words and regurgitates spam? If they understood it, they'd discuss it, but they don't; the post spammy links that are highly unlikely to be consistent with the actual arguments they're making; categorically, because if they had an understanding of the subject they would have already been discussing it, and they'd be doing web searches to increase their own understanding, not to make half-assed stabs at argument from authority.

                Try to understand the words that were s

              • To add for anybody wondering, the actual answer is that in any of the cases where the logo doesn't get copyright, it is not because it is a logo, it has nothing to do with logos, the link above to archive.org even clarifies that nobody involved in that action was claiming that the trademark status, or the commercial use as a logo, is relevant. They all agree it is not relevant. So all these other links to stuff about logos are just horseshit designed to mislead people.

                The logos that didn't get copyright did

                • Someone with an IQ of 60 can learn to tie their shoes.
                  Someone we never went to even elementary school can see things and learn something new, even accidentally.

                  You've provided yourself with a guarantee, though. You've discovered the fool-proof way to everlasting ignorance - simple refusal to learn. "I won't click on a link to law! If I read the law I might learn what it says!", says Aighearach.

                  At least your way is predictable - proof against all information, ensuring everlasting ignorance, by refusal to see

  • No, this is a nothingburger (Score:5, Interesting)

    by DRJlaw ( 946416 ) on Wednesday July 18, 2018 @12:20PM (#56968932)

    Now comes another surprise with potentially big ramifications to the future of embedding and in-line linking: The 2nd Circuit Court of Appeals has denied an interlocutory appeal.

    No. This has no ramifications whatsoever to the future of embedding and in-line linking. "Interlocutory appeals" are appeals that are taken while the case is still in the middle of being litigated in the trial court. Interlocutory appeals are an extremely rare exception [cornell.edu] to the concept that a trial court is to hear the entire matter and issue a final writted decision, and then the completed trial decision is to be appealed.

    Look at the link. Does the appealed order "resolve an issue completely separate from the merits of the action"? The copyright infringement claim was the heart of the action. Is the order "effectively unreviewable on appeal from a final judgment"? No, an appeal from a final judgment of copyright infringement would squarely involve liability for embedding or in-line linking.

    This was a purely procedural decision that the appeal was brought too early, and the appellate court wasn't having it.

    Finish the trial, then come back. "I really really think that the ruling was wrong" is not a basis for interlocutory appeal.

    • Ironically, the appeal might have saved the plaintiff a lot of money, and the plaintiff has the smaller pockets. But the judge looked at who was asking for it, and said no way too early.

      They already got settlements from most of the original defendants, and they need new law to eventually win. The whole point of why they can get settlements is for the defendants to avoid the cost of trial, not because of the eventual outcome!

      • Re: (Score:2)

        by DRJlaw ( 946416 )

        Ironically, the appeal might have saved the plaintiff a lot of money, and the plaintiff has the smaller pockets.

        Statutory damages for copyright infringement include a discretionary award of reasonable attorney fees.

        • And yet, I knew that before making my comment, as it doesn't change the analysis in any meaningful way.

          Did you know that awards get paid after the case is entirely finished?

          • Re: (Score:2)

            by DRJlaw ( 946416 )

            Did you know that awards get paid after the case is entirely finished?

            Why, yes, yes I did. Did you know that firms such as the one that I work in litigate on other than an hourly fee basis via mechanisms such as flat fees, tiered fees, risk sharing and success fees, etc?

            You have no idea whether this client would save money by artificially shortened litigation - especially since the only way that the litigation would be shortened in such an appeal is by this client losing his copyright claim.

            You analysis is

            • You can't possibly argue that I don't know, but you do. We have the exact same information. Exact.

              I generally like lawyers, but some don't understand that outside of the courtroom, honesty is a virtue; and casual honesty is a requirement for people to continue engaging in conversation with you. If you're trying to advocate for an argument, instead of sharing analysis of the issues, then nobody wants to hear you burp and blather up.

    • What does this even mean? What's a "nothingburger"? Is that some stupid social media word?
  • Now where have I heard that name before? Oh yeah, that other awful ruling where she decided uncharged, unproven conduct tainted by corruption could turn a 20-year sentence into life without parole. Not at all surprised she'd ignore standards to push her views again.

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