Watch what you embed: A federal judge in New York ruled this week that embedding a tweet on a webpage could constitute copyright infringement.
The case centered on a 2016 photo of New England Patriots quarterback Tom Brady. Taken by plaintiff Justin Goldman, who posted it to his Snapchat story, the image quickly went viral, spreading to Reddit before winding up on Twitter. From there, a number of online publishers – including Breitbart News Network, Heavy, Time, Yahoo, Vox Media, Gannett Company, Herald Media, The Boston Globe, and New England Sports Network – embedded a tweet containing the image on their sites alongside articles about Brady helping the Boston Celtics recruit basketball player Kevin Durant.
Goldman sued those publishers for copyright infringement, claiming he never publicly released the image.
“Having carefully considered the embedding issue, this Court concludes… that when defendants caused the embedded Tweets to appear on their websites, their actions violated plaintiff’s exclusive display right,” Judge Katherine Forrest wrote in a summary judgement opinion. “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.”
Not everyone agrees. In a Friday blog post, Daniel Nazer, senior staff attorney on the nonprofit Electronic Frontier Foundation’s intellectual property team, called the decision “legally and technically misguided,” and said it goes against “years of settled precedent.”
“Courts have long held that copyright liability rests with the entity that hosts the infringing content—not someone who simply links to it,” Nazer wrote. “The linker generally has no idea that it’s infringing, and isn’t ultimately in control of what content the server will provide when a browser contacts it.”
If backed up by other courts, this decision would “threaten millions of ordinary Internet users with infringement liability,” Nazer added.