In-line linking and embeds of images can be copyright infringement after all, in shocking finding by New York judge

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. YouTube's content-id ought to catch a lot of infringing content before upload (preventing any possible violation by the blogger, according to this reasoning), but it is not perfect. 

  

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.

Update: Dec 16, 2018

The Second Circuit had declined to hear an appeal and sent the case back for trial on other claims (fair use) and there is no information as to whether this has happened  (Eriq Gardner story in the Hollywood Reporter, July 17, 2018). There is no info so far as to whether a trial has started. 

EFF's page on this matter dates back to 2007. A logical question in this case might be whether the fact that the image had been on Snapchat which (unlike YouTube or most other sites) is supposed to expire and be deleted automatically, and which would mean that the secondary emedder is "preserving" it, maybe, would matter. 

The EU proposed Article 13 can make all this very complicated in international cases.