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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."
No. This has no ramifications whatsoever to the future of embedding and in-line linking. "Interlocutory appeals" are appeals that are taken while the case is still in the middle of being litigated in the trial court. Interlocutory appeals are an extremely rare exception to the concept that a trial court is to hear the entire matter and issue a final writted decision, and then the completed trial decision is to be appealed.
Look at the link. Does the appealed order "resolve an issue completely separate from the merits of the action"? The copyright infringement claim was the heart of the action. Is the order "effectively unreviewable on appeal from a final judgment"? No, an appeal from a final judgment of copyright infringement would squarely involve liability for embedding or in-line linking.
This was a purely procedural decision that the appeal was brought too early, and the appellate court wasn't having it.
Finish the trial, then come back. "I really really think that the ruling was wrong" is not a basis for interlocutory appeal.
Your material / image for display and linking. That's what the public world wide web IS.
If you hadn't wanted and those things to happen, you would not have posted your stuff where it is accessible and viewable and linkable and searchable on the public WWW.
Copyright law, in my vague understanding, requires that the copyright holder take reasonable steps to enforce their copyright.
Placing your image in public view in a public square is clearly indicating your intention to allow viewing of and referral to the location of your image.
That act (of posting on public site) is essentially the opposite of taking reasonable steps to enforce your copyright.
If you try to enforce copyright after the fact, after you have already implicitly licensed your image for public viewing and for being referenced by publicly accessible URL, that is closing the door after opening it to let the horses out. That is disingenuous, self-contradictory, and should not be legally valid.
Where are we going and why are we in a handbasket?