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Appeals Court Won't Take Up Copyright Decision That Raised Alarm About Embedding, Linking (hollywoodreporter.com)
The 2nd Circuit denies an immediate appeal in a case that challenges how news organizations used embedded photos of Tom Brady. The Hollywood Reporter: Back in February, a New York judge caused a bit of a freakout by issuing a copyright decision regarding the embedding of a copyrighted photo of NFL superstar Tom Brady. Now comes another surprise with potentially big ramifications to the future of embedding and in-line linking: The 2nd Circuit Court of Appeals has denied an interlocutory appeal. Justin Goldman is the plaintiff in the lawsuit after finding the photo of the New England Patriots quarterback he shot and uploaded to Snapchat go viral. Many news organizations embedded social media posts that took Goldman's photo in stories about whether the Boston Celtics would recruit NBA star Kevin Durant with Brady's assistance. Breitbart, Heavy, Time, Yahoo, Vox Media, Gannett Company, Herald Media, Boston Globe Media Partners and New England Sports Network were defendants in the lawsuit, but many of these companies have since settled.
Heavy has not, and in February, U.S. District Court Judge Katherine Forrest shocked many legal observers with a decision that refused to apply the "Server Test," where the direct liability of a website publisher for copyright infringement turns on whether the image is hosted on the publisher's own server or is embedded or linked from a third-party server. Although the Server Test has been adopted in other jurisdictions, Forrest wrote, "The plain language of the Copyright Act, the legislative history undergirding its enactment, and subsequent Supreme Court jurisprudence provide no basis for a rule that allows the physical location or possession of an image to determine who may or may not have 'displayed' a work within the meaning of the Copyright Act." She added, "Nowhere does the Copyright Act suggest that possession of an image is necessary in order to display it. Indeed, the purpose and language of the Act support the opposite view."
Heavy has not, and in February, U.S. District Court Judge Katherine Forrest shocked many legal observers with a decision that refused to apply the "Server Test," where the direct liability of a website publisher for copyright infringement turns on whether the image is hosted on the publisher's own server or is embedded or linked from a third-party server. Although the Server Test has been adopted in other jurisdictions, Forrest wrote, "The plain language of the Copyright Act, the legislative history undergirding its enactment, and subsequent Supreme Court jurisprudence provide no basis for a rule that allows the physical location or possession of an image to determine who may or may not have 'displayed' a work within the meaning of the Copyright Act." She added, "Nowhere does the Copyright Act suggest that possession of an image is necessary in order to display it. Indeed, the purpose and language of the Act support the opposite view."
Last time Congress got together to make laws on this topic, we got the DMCA. Right now they're considering an extension of the terms of copyright. Congress doesn't represent you on this topic.
"First they came for the slanderers and i said nothing."
An interlocutory appeal causes the natural progression of a lawsuit to pause because there's a question of law that needs to be resolved before proceeding.
In this matter, a citizen took a photograph and the media grabbed it and used the photo in news stories.
Appreciate that the news agencies are making money, but the photographer is not.
The interlocutory appeal is a request by the media, "Wait a minute! The photo is not stored on our servers. We don't take the position that we "own" it. We are simply embedding a shared photo from another place."
U.S. District Court Judge Katherine Forrest shocked many legal observers with a decision that refused to apply the "Server Test," where the direct liability of a website publisher for copyright infringement turns on whether the image is hosted on the publisher's own server or is embedded or linked from a third-party server.
So, the judge said, "We're not going to call a time out and create a sidebar court session to determine provenance because the photo belongs to the photographer and it don't make a flying rat's ass where it's stored."
Photographers would benefit greatly if use of their work anywhere had to comply with copyright law.
This action might impact embedded links, as well.
Play like you are in your automobile as you read this and it will make a swell car analogy.
It little behooves the best of us to comment on the rest of us.