According to a New York federal court ruling, embedding a tweet into your blog could actually be a copyright violation. Is this for real? I understand that the information belongs to someone, but typically when you’re embedding that tweet into your blog, you’re citing the source. So how is that copyright? You’re giving credit to the person who posted the tweet in the first place. In many cases, these Twitter users don’t have any stipulations on who can follow them, so how is this a copyright violation?
Several sites including Time, Yahoo, Vox, and Breitbart published stories where they embedded a tweet which contained an image of Tom Brady. The tweet was posted by another party, but the photographer who took the photo accused the news sites of copyright infringement for embedding it. And the judge agreed! Seriously? While I agree that people shouldn’t be able to steal the works of a photographer, I do wonder how far we are going to take this?
The open internet advocacy group – Electronic Frontier Foundation – points out that this puts an end to ten years of precedent from a 2007 Ninth Circuit ruling known as Perfect 10 v. Amazon. In that case, the court ruled that the hosting entity is liable for copyrights, not the company or the individual who embeds or links it. The reason is that anyone who links to the content might not know that it’s an infringement issue. The concern is that you might embed one Facebook image, and then another user who is hosting it could edit the post and change it.
But this judge has rejected the Ninth Circuit’s “server test”. The judge’s argument is that embedding something is relatively easy to do thanks to modern-day content management systems. He states that this used to be a highly technical process that could only be done by someone who understood enough HTML to be able to write that into the code. Which means, in his opinion, that publishers, rather than hosts can be held liable.
Judge Katherine Forrest states:
“[When the] defendants caused the embedded Tweets to appear on their websites, their actions violated plaintiff’s exclusive display right. The fact that the image was hosted on a server owned and operated by an unrelated third party (Twitter) does not shield them from this result.”
What does this mean for other content though? Can you no longer embed YouTube videos? I presume Instagram posts will be applied to this rule as well. EFF notes that this could cause chaos, as the 2007 ruling “has been a foundation of the modern internet”. Like with any case, this could be appealed, but as of right now this is the rule.
I understand why rules exist from a copyright perspective, and I respect those rules. But I do wonder to what extent we can copyright content given the fact that the internet exists? In the case of the Tom Brady image, would people who have retweeted the image also been accused of copyright? Or is it just the fact that blogs are considered published content? If I want to write a story, how can I convey to my readers the proper information, if I’m not allowed to source the original story – or image – or whatever it might be? My concern is how this will play out from a journalism perspective, but I guess only time will tell.