Goldman v. Breitbart News Network, LLC
302 F. Supp. 3d 585 (2018)
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Rule of Law:
A website's act of embedding a copyrighted image from a third-party server into its own webpage violates the copyright holder's exclusive right to display the work under the Copyright Act, regardless of whether the website stores a copy of the image on its own servers.
Facts:
- Justin Goldman took a photograph of Tom Brady and others in East Hampton.
- Goldman uploaded the photograph to his personal Snapchat Story.
- The photograph was subsequently shared across social media and uploaded to Twitter by several users.
- Various online news outlets and blogs (the defendants) wrote articles about Tom Brady.
- These news outlets embedded the tweets containing Goldman's photograph directly into their articles, making the photo fully visible to readers on their websites.
- The defendants did not download or store a copy of the photograph on their own servers; instead, their websites' HTML code instructed users' browsers to retrieve the image from Twitter's servers.
Procedural Posture:
- Justin Goldman filed a copyright infringement suit against several news websites in the U.S. District Court for the Southern District of New York (a federal trial court).
- The court divided the litigation into two phases, with the first phase addressing only the legal question of whether embedding constitutes a violation of the display right.
- Defendants filed a motion for partial summary judgment, asking the court to rule in their favor on this issue as a matter of law.
- The court heard oral argument on the motion.
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Issue:
Does a website's embedding of a tweet containing a copyrighted photograph, where the photograph is hosted on a third-party server and not the website's own server, violate the copyright holder's exclusive right to display the work under § 106(5) of the Copyright Act?
Opinions:
Majority - Forrest, J.
Yes, a website's embedding of a tweet containing a copyrighted photograph violates the copyright holder's exclusive right to display the work. The court rejected the 'Server Test,' which would require an infringer to host a copy of the work on its own server to be liable for direct infringement. The court reasoned that the plain language of the Copyright Act defines 'display' broadly as showing a work by 'any device or process,' without requiring physical possession of the copy. The defendants took active steps by incorporating HTML embed code into their websites, which constitutes a 'process' that causes the image to be transmitted and displayed to users. This interpretation is supported by the Act's legislative history, which shows Congress intended to cover new technologies, and by the Supreme Court's decision in Aereo, which cautioned against letting liability hinge on technical distinctions invisible to the end-user. The court also distinguished the Ninth Circuit's Perfect 10 case, noting it involved a search engine and required a volitional act from the user (clicking a link), whereas here, the defendants are publishers who actively curated content that was displayed automatically to visitors.
Analysis:
This decision represents a significant rejection of the Ninth Circuit's influential 'Server Test' and creates a circuit split on the issue of liability for embedding content. By focusing on the end-user's experience and the website publisher's active role in selecting and presenting the content, the court shifts the infringement analysis away from technical details like server location. This ruling expands potential liability for online publishers and forces a re-evaluation of common internet practices, increasing the importance of licensing and fair use defenses for embedded media. The Supreme Court may eventually need to resolve this conflict among the circuits.
