In-Line Linking May Be Copyright Infringement–Goldman v. Breitbart News

19 02 2018

Ugh, this decision is bad. How bad is it? It makes me sympathetic to Breitbart, and I didn’t even know that was possible. You may want a box of tissues nearby before reading this. The TL;DR: for over a decade, in-line linking has been treated as categorically non-infringing. This opinion flips that presumption and may eliminate all unlicensed in-line linking.

Goldman (no relation) posted a photo of quarterback Tom Brady to Snapchat. It went “viral,” and third parties reposted the photo to Twitter. The defendants then “embedded” those tweets, including Goldman’s photo. Functionally, embedding is the same as in-line linking. The photo remains hosted on Twitter’s servers, and embedding automatically instructs web browsers how to obtain the photo from Twitter’s servers and incorporate it into the page’s HTML.

The parties agreed to put a threshold question to the judge first: is embedding tweets a “public display” for copyright purposes? All other legal questions were reserved for subsequent proceedings depending on the court’s answer. Because of the streamlined legal question answered by the court, any gossipy details about Brady and Twitter are irrelevant. This ruling is much broader than that.

The court says in-line linking of photos constitutes a prima facie copyright infringement (a public display). The defendants can still advance other defenses, and they might even win on other grounds. But even if that happens, this ruling will remain deeply troubling if it’s not fixed on appeal.

Case citation: Goldman v. Breitbart News Network, LLC,  1:17-cv-03144-KBF  (S.D.N.Y. Feb. 15, 2018).


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