News Sites Take Battle Over Tweet To Appellate Court

Time, Gannett and other news organizations are asking a federal appellate court to decide whether embedding a tweet in a news article can infringe copyright.

The publishers are seeking to immediately appeal an order issued by U.S. District Court Judge Katherine Forrest in New York, who ruled that they may have infringed photographer Justin Goldman's copyright by embedding a tweet that contained his photo of NFL quarterback Tom Brady.

Forrest's order "upended settled expectations regarding liability for the ubiquitous practice of linking to content on the internet," the publishers argue in papers submitted recently to the 2nd Circuit Court of Appeals.

The battle centers on a photo of New England Patriots quarterback Tom Brady taken in July 2016 by 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 for alleged copyright infringement. The publishers unsuccessfully asked Forrest to dismiss the lawsuit, arguing 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 others pointed to an 11-year-old decision by the 9th Circuit Court of Appeals in a dispute between adult entertainment company Perfect 10 and 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, described in court papers as the "server test." She said in her ruling that the location of the server hosting the image doesn't determine whether its display on a news site infringes copyright.

The news organizations are now asking the 2nd Circuit to decide whether publishers can be liable for displaying a photo when the image resides on an outside company's server.

Goldman opposes the news organizations' request. He argues in papers filed this week that the news organizations haven't made a good case for the "extraordinary relief" of an immediate appeal.

He also argues that the current battle stems from an attempt by the news industry to "create out of whole cloth an industry-wide blanket immunity from any legal consequences when they help themselves to copyright content."

"Each defendant here separately decided to, and then reached-out for, and then helped-itself to, and then prominently displayed on their websites, a copyrighted photo owned by plaintiff," he argues. "As a result of decisions made and coding engineered solely by defendants, those displays were presented in full on their websites."

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