There has been an important and troublesome development
regarding the concept of in-line linking or embedding of copyrighted images and
probably videos.
In the case of Goldman v Breitbart et al a federal judge
in New York, Katherine Forest, has rejected a supposed legal standard that copyright
infringement occurs only when an infringing image actually resides on a
publisher’s own site (and hosting server).
This has apparently been accepted law in the Ninth and Seventh circuits
for about ten years. Electronic Frontier Foundation has a story here by Daniel Nazer.
An attorney named Eric Goldman (no relation to the
plaintiff) has a more detailed blog posting on the case, link here. The judge invited the defendants to make
other defenses, including fair use, and seems to believe that her ruling would
not apply to “innocent” embedding in normal social media use. But the attorney points
out that social media companies are likely to make more restrictive TOS changes,
to the point that they could work.
A good question would come from applying the ruling to embedded YouTube, Vimeo,
etc. videos. According to the logic of
the judge’s finding, the actual video would not be infringing because a user
has to click to play it. But images that
are shown in a preview might be. It’s important to realize that an original
publisher can mark a video as not embeddable if she doesn’t want to allow
in-line display, but an illegal “pirated” copy won’t get so marked. Normally YouTube takes the video down when
there is a DMCA complaint, and embeds on other sites just turn gray and nothing
else happens. A similar concern could apply to previewed news stories shared on
Facebook and Twitter, at least to any images in them.
Other major news media accounts include The Verge (belonging
to Vox, one of the defendant companies) and Hollywood Reporter, which
replicates the image (which shows when I post that story on Twitter myself – so
“sue me”).
Attorneys are uncertain as to whether the defendants even
need to appeal her ruling in order to win the case on other grounds, which
could leave a troubling problem for social media companies. The judge apparently believes that DMCA Safe
Harbor policies will protect these companies.
It does seem to matter if the end user is likely to realize
that there is an indirect link.
It may also matter that the original photo was shared on
Snapchat, where the normal intention is that the content disappears. I don’t use Snapchat.
One could become concerned that in the long run a ruling
like this could attract Righthaven-style copyright trolls if it were allowed to
stand.
This story needs to be watched closely and I will cover it in
more detail soon on Wordpress.
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