• by Wendy Davis  @wendyndavis, March 15, 2018

Digital rights groups and news associations are slamming a judge's recent ruling that Time, Yahoo and other publishers may have infringed copyright by embedding a tweet that contained a photo in news stories.

The decision "has already created substantial uncertainty for media organizations, citizen journalists, educators, artists and activists," the News Media Alliance, Association of Magazine Media, Scripps Company, Electronic Frontier Foundation and Public Knowledge argue in a friend-of-the-court brief filed this week with U.S. District Court Judge Katherine Forrest in New York.

The groups are urging Forrest to allow Time, Yahoo and the other companies to immediately appeal her recent decision. 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 photo 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 tweet, including the embedded image, was hosted on Twitter's servers.

The 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 last month that there was no basis for the location of the image to determine whether its display on a news site may have infringed copyright.

Time, Yahoo and the other defendants now want to immediately appeal that decision to the 2nd Circuit. They argue that online publishers have relied on the idea that embedding content doesn't raise the prospect of liability, provided that the content is stored on outside companies' servers.

The News Media Alliance, EFF and other outside organizations are supporting the publishers' request. The earlier ruling "was met with widespread consternation because if it is indeed the law, then media organizations, social media platforms and Internet users must now substantially alter the ways in which they display content online," the groups write.

They argue that the so-called "server test" -- or the idea that only the platforms that host content are liable for copyright infringement -- allowed news sites to "quickly and freely report on matters and to disseminate news and information to the public without risking copyright infringement claims."

The groups add that Forrest's ruling doesn't just affect news organizations, but could also have an impact on bloggers, activists and other web users. Those groups may now have to "devote substantial time to determine whether third party content is protected by copyright, thus delaying the dissemination of newsworthy content."

Goldman recently opposed the publishers' request for an immediate appeal. Forrest has not yet said when she plans to rule on the request.