Slashdot Mirror
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."
Photographer takes a picture o someone. Posts it to Snapchat.
Other news organizations run a story and include an embedded link to the picture.
Photographer is a cunt, and sues.
Moron luddite judge says "LOL I agree with cunt photographer".
Actually seems reasonable, as far as it goes.
I don't think you'd get away with displaying even stock photography that you hadn't got permission for, just by linking to an instance of it on someone else's website. Try arguing that with Getty ...
Whether that should be the law is open to debate, but it sounds like a reasonable application of existing law.
Wanting to control the photo is fine. The cunt part is that they sued innocent third parties instead of the site that had transmitted the unauthorized copies (which appears to be either instagram or twitter; I can't tell) nor the people who pirated the photo (the users of the web browsers).
A non-cunt would have sued whoever had committed the infringement, not the web sites that told people where they can find the photo.
"Believe me!" -- Donald Trump