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Goldman v. Breitbart News Network: The Click Rule: Re-Examining Whether Embedding Copyrighted Material is Infringement

Copyright Reports

Goldman v. Breitbart News Network, No. 17-CV-3144 (KBF) (S.D.N.Y. Feb. 15, 2018), hosted by

The U.S. District Court for the Southern District of New York held that websites embedding a tweet containing a copyrighted image violated copyright to the image. In so holding, the court rejected the Ninth Circuit’s “server test,” originally from Perfect 10, Inc. v., Inc., 508 F.3d 1146 (9th Cir. 2007), which states that a content provider infringes on the copyright only if they host the copyrighted material on their servers. Instead, citing precedent that held that transmitting copyrighted material was infringement, American Broadcasting Co.s, Inc. v. Aereo, Inc., 134 S. Ct. 2498 (2014), Judge Forrester drew a distinction between providers who require users to click to access the material and those who do not – a distinction that may not always be clear.

Many of the copyright cases arising from novel features of the internet do not have clear analogues in pre-internet copyright law, including Perfect 10, which asked the question of whether linking to copyrighted material infringed on the creator’s copyright. To settle the issue, the Ninth Circuit devised the “server test:” if and only if the material in question is on your server, you infringed on the copyright holder’s rights. The server test is easily understood and easily administered, and much of the internet today, including Google Images, depends on it.

So, when photographer Justin Goldman sued Breitbart, Time, Vox, and several other media outlets for embedding a tweet that included his copyrighted intellectual property, a photograph of Tom Brady, it seemed an open-and-shut case: because those outlets merely linked to the copyrighted material and it was never stored on their servers, only the original tweeter violated Goldman’s copyright. However, Judge Katherine B. Forrest of the Southern District of New York disagreed.

In Goldman v. Breitbart News Network, Judge Forrest rejected the Ninth Circuit’s server test, instead granting partial summary judgment in favor of Goldman and severely muddying the waters for the future of copyright law. Early in the opinion, Judge Forrest described embedding a tweet in terms of “HTML code,” as if it is a process accessible only to “coders and web developers,” and not to ordinary Twitter users. In the same section, she also noted that no party disputes that the defendants’ servers never hosted the images.

Only the Ninth Circuit has ever addressed this same issue directly; however, several district courts have. Thus far, those outside of the Ninth have been split on whether to apply the server test. It seems as if Judge Forrest was not satisfied with existing precedent and thus approached the issue as distinct from Perfect 10. She examined the text of the relevant Copyright Act and, after noting that copyright law must adapt for new technologies, determined that it does not require physical possession for infringement claims. She also likened this case to Aereo, in which the Supreme Court held that although Aereo had merely transmitted the material, “invisible technical details” that did not change the user experience were not determinative.

Judge Forrest distinguished this case from Perfect 10, introducing the “click test:” Perfect 10 concerned Google Images, through which users have to click a link to display the image. In this case, however, the embedded tweet autoatically loaded the image for all users of the defendants’ websites to see. Furthermore, Judge Forrest questioned the validity of Perfect 10, revisiting her analysis of the Copyright Act, which she concluded does not require physical possession.

The effects of this ruling on the internet and digital media remain to be seen. Some observers, such as the Electronic Frontier Foundation and Wired, believe that it threatens in-line linking and could even change online publishing altogether. One amicus brief, which Judge Forrest quoted, predicted that the ruling will “transform the internet as we know it.” However, she rejected doom-and-gloom prophecies, claiming that her click test protects search engines as adequately as the server test, and that the myriad defenses available in copyright cases will protect other in-line linkers. Judge Forrest has eliminated a decade-old bright-line rule, and the only thing that is certain from here is that the appeal will be closely watched. 

Rex Bray III is a 1L student at Harvard Law School.