Federal Judge Says Embedding a Tweet Can Be Copyright Infringement (eff.org)

An anonymous reader quotes a report from the Electronic Frontier Foundation: Rejecting years of settled precedent, a federal court in New York has ruled [PDF] that you could infringe copyright simply by embedding a tweet in a web page. Even worse, the logic of the ruling applies to all in-line linking, not just embedding tweets. If adopted by other courts, this legally and technically misguided decision would threaten millions of ordinary Internet users with infringement liability.

This case began when Justin Goldman accused online publications, including Breitbart, Time, Yahoo, Vox Media, and the Boston Globe, of copyright infringement for publishing articles that linked to a photo of NFL star Tom Brady. Goldman took the photo, someone else tweeted it, and the news organizations embedded a link to the tweet in their coverage (the photo was newsworthy because it showed Brady in the Hamptons while the Celtics were trying to recruit Kevin Durant). Goldman said those stories infringe his copyright. "[W]hen defendants caused the embedded Tweets to appear on their websites, their actions violated plaintiff's exclusive display right; 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," Judge Katherine Forrest said.

Comments

Obviously

[emj]

Of course news orgs should pay royaltees but should Google and Twitter who do it automatically (no)?

Re:Obviously

[Zocalo]

Disclaimer: IANAL, but I am a photographer so have a pretty good grasp of how copyright applies to my images - or is supposed to at least.

Implications and whether or not current copyright law is fit for purpose aside, legislation under the Berne Convention is pretty clear: unauthorised reproduction that does not comply with any explicitly granted permissions of use is a breach of copyright, and that applies to code under the GPL and Creative Commons (amongst licenses) as well as traditional publications, photographs, audio, video and so on. In the case of a photograph, then the copyright belongs to the photographer in the first case, and their agency/publisher only if they have agreed to transfer the rights - if anyone else re-uses that image without express permission, then they have breached the copyright.

Now, if you want to try and assign responsibility for an image embedded in a tweet (or any other form of online post), it's going to get messy however you slice it. Copyright is all about controling others ability to reproduce the data, and the owner of the copyright putting some data into a public forum like Twitter or whatever does not change that right. Publishing a book puts the text into a public forum, yet you can't arbitrarily decide to OCR it and publish your own version of the book without any fear or legal repercussion, for instance. So, unless there is an explicit granting of a license to retweet an image, by doing so - technically - you are going to be in breach of copyright, not Twitter. At best, Twitter can be accused of helping to facilitiate that infringement and perhaps not taking sufficient steps (quite what those might be, however... asking for an affirmative consent to retweet, blocking all image retweets?) to prevent it, only far too many people turn a blind eye to this because retweets = higher profile = (hopefully!) profit. This is why such services often try to cut through the whole mess by including a clause in their ToS/EULA that grants them - as a platform - the right to reproduce the content at will within the confines of that platform; take an image from Twitter and post it elsewhere, and that is no longer Twitter's problem if the copyright owner decides to sue. And that's before you consider the issue of fair use; a snippet of a larger text is one thing, an image is (usually) the entire work, so where do you draw the line for something in the public interest, just how do you define public interest, and should that be any different to a random picture of whatever?

There's a lot of scary implications for both the operators and users of online services here, whichever way any potential legislative ruling might decide to view this kind of thing. While we tend to prefer things to be nice and clear cut with a clear demarcation line separating black from white, in this instance I think it might actually be better for the majority of people on all sides to just leave things in a grey area and rely on the spirit of the law and likely intent as the decider in any legal action that might be undertaken.

Re:Obviously

[nine-times]

Honestly, basically... yes. I think if the New York Times tweets something, then as a public statement, it should be able to be "quoted" as an issue of fair use-- especially for the purpose of reporting news. It's like if I go out into a public forum and make a statement, and then the news reports exactly what I said, word for word, I shouldn't be allowed to sue them for copyright violation.

Now it's not as simple as all that. There can be and should be limits. A public figure shouldn't be able to sue a news agency for copyright violation for accurately reporting what they say. However, if you write a play and have a public performance, I think it's fair to say that it's a copyright violation to reproduce the entire play, publishing the entire script or performing the play in full. However, I don't think it's a copyright violation to quote a line from the play. It's not a copyright violation for the news to show a picture of the play, or to report what happens in a scene of the play.

And that's where this gets a bit dicey: Can a picture be part of a quote? If a newspaper can quote a public statement, and I make a public statement with a photo attached as an integral part of that statement, can the picture be "quoted" under fair use? I would say yes, that makes sense to me. I don't know if there's a particular law or precedent that addresses it specifically, but given the multimedia nature of modern computing, I would think a news organization should be able to report a "quote" that includes an image or even a video clip, under fair use.

So under that logic, a newspaper shouldn't be able to simply take a staff photographer's image from a NYT twitter post, and post it as their own on the front page. However, they should be able to write a story that includes that tweet, reporting "The New York Times tweeted this picture."

And I think it gets even harder to argue it's inappropriate when it's an embedded tweet. If the New York Times knowingly posts a picture onto a platform that allows an encourages people to embed content in other sites, then they should expect that it will be embedded. Twitter's Terms of Service includes this:

By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). This license authorizes us to make your Content available to the rest of the world and to let others do the same.

Given all of this, I don't think news agencies should be held responsible for embedding an entire tweet, reporting "someone has tweeted this." If the someone else posted your copyrighted content on Twitter, then the person who posted it should be responsible for copyright violation. Or perhaps you could argue that Twitter is responsible because they have inadequate copyright protections.

Copyright law not are not just for elecronic media

[jellomizer]

Here is the problem.
Copyrights were made back in the printed press days. In order to violate a copyright law you needed an expensive printing press. That often required a business of printing/publishing material. So the individual copyright violator should be expected to pay large penalty, because if they have the resources to gain access to a printing press, they also have enough resources to understand the law, and they would be part of a small number of people who may be hurting the copyright holder.

However today, it is harder to not break a copyright law then to follow it. Because digital media which is cheap and acceptable by all, is designed to make exact copies and spread them very easily. So we are having 18th century punishment aimed at obvious offenders, hitting individuals who just wanted to share some interesting information, that takes two button presses.