• by Wendy Davis  @wendyndavis, July 18, 2018

A federal appellate panel in New York has rejected news organizations' request to immediately decide whether embedding a tweet in a news article can infringe copyright.

The decision, issued by a three-judge panel of the 2nd Circuit Court of Appeals, means that Time, Gannett and other organizations must continue to face a lawsuit accusing them of infringing copyright by embedding a tweet that contained a photo of New England Patriots quarterback Tom Brady. The appellate judges' short order, issued Tuesday, said only that an immediate appeal was "unwarranted."

The high-profile copyright battle, which has drawn the attention of outside media organizations and digital rights groups, centers on a July 2016 photo of Brady taken by photographer Justin Goldman. Goldman 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 then sued the news companies for alleged copyright infringement. The publishers asked U.S. District Court Judge Katherine Forrest in New York 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.

Earlier this year, Forrest rejected the publishers' argument, described in court papers as the "server test." She ruled that the location of the server hosting an image doesn't determine whether its display on a news site infringes copyright.

The news organizations then sought to immediately appeal that ruling to the 2nd Circuit Court of Appeals. That request was supported by groups including the News Media Alliance, Association of Magazine Media, Scripps Company, Electronic Frontier Foundation and Public Knowledge, which argued that the ruling was creating "substantial uncertainty" for media organizations and journalists.

Forrest's 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 wrote in court papers.

The publishers and their supporters argued that Forrest's ruling went against an 11-year-old decision by the California-based 9th Circuit Court of Appeals. In that matter, which involved a dispute between adult entertainment company Perfect 10 and Google, the court ruled that Google 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.

The news publishers could still ultimately prevail in the lawsuit. Forrest noted in the original ruling that the news organizations might be able to argue that they made fair use of the image, and that the photographer may have effectively placed the photo in the public domain by posting it to Snapchat.