Embedding in the Balance: the Goldman Cases

In a pair of cases pending in the U.S. District Court for the Southern District of New York, photographer Justin Goldman and various online media outlets seek to set the record straight on whether embedding images on a website through in-line linking without authorization constitutes copyright infringement.  A website embeds an image using an in-line link when it uses HTML code to direct a user’s browser to an image file hosted on and transmitted from a server controlled by a third-party (usually another website) yet it appears as if the image resides on the website the user is actually viewing.  The allegedly infringing website effectively opens a “window” allowing the user to see an image hosted by a third party, yet never actually copies, stores, or serves up the image itself.

This is the technological method the defendants used in the Goldman cases, and that many other digital media companies have come to rely on in certain situations (e.g., when images or videos are not available for license), but that many content owners believe harms the image licensing market by leaving open a legal back door around otherwise infringing unlicensed uses.

The defendants in the Breitbart case – after having their motions to dismiss denied – have now moved for partial summary judgment on the question of the legality of embedding under the Copyright Act (a motion complete with amicus briefs), which the plaintiff has vigorously opposed.  The motion is pending, and is scheduled to be fully briefed on November 29, 2017.  Goldman’s companion case, Goldman v. Advance Publications, Inc., et al., is pending in the same court but before a different judge, and is at an earlier procedural stage.  The court in Advance Publications also denied the defendants’ motion to dismiss and ordered the parties to engage in full discovery (tentatively set to end on February 6, 2018) prior to filing summary judgment motions.  If the court in the Breitbart case rules on the pending summary judgment motion first (which seems likely given the timing), that ruling may have an impact on the Advance Publications case.

At issue in the Breitbart summary judgment motion is whether the defendants’ embedding of a photograph posted on Twitter constitutes unauthorized “public display” of that photograph in violation of 17 U.S.C. § 106(5).  The defendants, including Time, Inc., Yahoo, Inc., and Vox Media, own media outlets that reported about New England Patriots quarterback Tom Brady’s meeting with members of the Boston Celtics in the Hamptons – a newsworthy occurrence in the context of NBA player trades.  Goldman captured a photograph of the athletes, which several Twitter users posted on the social media platform.  The defendants then embedded tweets containing Goldman’s photograph using in-line linking.  Goldman sued for copyright infringement.

The Defendants, in moving for summary judgment opposing Goldman’s direct copyright infringement claims, rely heavily on a decision by the U.S. Court of Appeals for the Ninth Circuit, Perfect 10 v. Amazon.  That case held that Google’s in-line linking of the plaintiff’s copyrighted images of nude models was not copyright infringement because the images were stored on the servers of third-party sites.  Goldman counters that Perfect 10 was wrongly decided because the user still displays the photo; that there are significant technological differences between what Google did in Perfect 10 and embedding content from social media platforms; and that Perfect 10 does not apply because it is not precedential in the Second Circuit.

Regardless of how the Breitbart court decides the pending summary judgment on the legality of embedding, the importance of the issue means that it is very likely that the decision will eventually end up on appeal, opening the door for a Second Circuit counterpart to Perfect 10, and perhaps even a circuit split worthy of Supreme Court review if Goldman wins on either of his cases.  Regardless of who wins, the decision will have a significant impact on one or more segments of the digital media world: a decision in favor of the plaintiff will impact how users of copyrighted images (digital media outlets in particular) create their content, manage their liability risk, and train and instruct employees and staff, and a decision in favor of the defendants will reinforce the applicability of the Perfect 10 decision.   The Goldman cases are ones to watch closely in the coming months.