From 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 Inc., Time Inc., 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.”
The defendants in the case had warned that such a decision would “cause a tremendous chilling effect on the core functionality of the web,” and once the ruling was issued, the News Media Alliance, the Association of Magazine Media, E.W. Scripps Company, the Electronic Frontier Foundation and Public Knowledge urged Forrest to certify an interlocutory appeal.
Link to the rest at The Hollywood Reporter
Im with Debbie Could PG explain this, like is it good for creators, or not so hot?
Hi PG – I hope you’ll explain this one. I’m interested, and couldn’t quite figure out what the deal was. Need plainer english! 🙂
love your work, my favorite, always must read newsletter every day.
I would note that what was denied was an interlocutory appeal. That particular species of appeal is made on a ruling of the trial court while the case is still in process in the trial court.
Appeals courts rarely grant these – they would much rather examine whether the case was appropriately decided by the trial court once the initial dust has settled. “Once and done!”
Ah. That is helpful. Thank you for the gloss.
Next up: SCOTUS.