News Publishers Want To Take Battle Over Embedded Tweet To Appellate Court

Time, Yahoo, Breitbart News and other organizations are asking a judge for permission to immediately appeal her recent decision that they may have infringed copyright by embedding a tweet that contained a photo of NFL quarterback Tom Brady.

The news organizations say the ruling runs contrary to publishers' "settled expectations" and could leave web sites facing new copyright lawsuits based on material that is already embedded in "countless articles."

"The court’s decision here has dramatic, far-reaching practical implications for all online publishers, social media and content platforms, and Internet users," the news organizations write in papers filed Monday with U.S. District Court Judge Katherine Forrest in New York. They are asking her to authorize an appeal to the 2nd Circuit and to stay the proceedings until the appeal is decided.

The dispute centers on a photo of New England Patriots quarterback Tom Brady taken in July 2016 by photographer Justin Goldman. He uploaded the picture to Snapchat, following which other users posted the photo to Twitter. After the photo appeared on Twitter, news sites including those operated by Time, Gannett, Breitbart and Yahoo embedded the Tweet in articles.



Goldman sued the news companies last year, arguing that they infringed his copyright by displaying the image on their sites. The news organizations asked Forrest to dismiss the lawsuit. They argued that they didn't "display" Goldman's photo for purposes of copyright law, because the embedded images were hosted on Twitter's servers

Time and the other publishers pointed to an 11-year-old decision by the 9th Circuit Court of Appeals in a matter pitting adult entertainment company Perfect 10 against Google. In that case, the appellate court ruled that Google's search engine didn't infringe copyright by creating "in-line" links to outside pages that contained unlicensed photos. Those in-line links allowed users to view the photos without leaving Google, but the images themselves remained on outside companies' servers. The decision in that case hinged on the fact that the infringing images were not stored on Google's servers.

Forrest rejected the news companies' argument, characterized in court papers as the "server test." She ruled that there was no basis for the location of the image to determine whether its display on a news site may have infringed copyright.

The news organizations now say they want the 2nd Circuit to decide that question. They argue that publishers have long relied on the idea that embedding content doesn't raise the prospect of liability, when that content is stored on outside companies' servers.

"Linking to content from third party sites by embedding -- particularly from social media sites -- is one of the most common ways that content is shared online, in large part based upon the settled expectations that resulted from Perfect 10 and its acceptance by courts around the country," they write in their new court papers. "This shared understanding has not only led to the explosion of embedding as an established practice on the Internet generally over the past decade, but appears also to explain the dearth of infringement claims based on embedding over that same time period."

The publishers add that an appeal is warranted because it could result in a speedy dismissal of the lawsuit. "Without an [immediate] appeal, those Defendants may have to litigate this case through the rest of discovery and trial, even though, on an eventual appeal, they may be found to have had no liability in the first place," they write.

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