Appeals Court Won't Yet Review Awful District Court Decision That Says Embedding Could Be Infringement

Back in February we wrote about an absolutely horrible ruling out of a New York court by Judge Katherine Forrest that argued embedding an infringing tweet could be an act of infringement on its own. As we pointed out, if this ruling holds, it would undermine some of the basis of how the internet itself works. The issue here gets a bit into the weeds of both how the internet and how copyright law works. Embedding something on the internet, at a technical level, is really no different than how linking on the internet works. And it's long been established that if you link to infringing content, that alone should not be considered a separate act of infringement. But is embedding? At a very basic level, this is the difference between the two:

A link:
<a href="http://www.somedomain.tld/image.png">An image!</a>

An embed:
<img src="http://www.somedomain.tld/image.png" title="An image!">

Everyone agrees that the first one is not infringing by itself (the original site hosting it, or the person who uploaded it, may be infringing, but not the person linking to it). Most courts have used the "server test" on this question, saying that if you merely embedded the image, a la what's above, it's not infringing for the person who used the embed code. This makes sense for a fairly important reason: if you use an embed code on your site, you never actually have the image on your site. Even if it appears on the site, that is merely because the end user's browser pulls that image in and displays it -- which is exactly how the web was designed to work, with the ability to pull in content from many different places and show it all together.

But Judge Forrest decided to throw everyone for a loop and toss that whole idea out the window:

The Court declines defendants' invitation to apply Perfect 10's Server Test for two reasons. First, this Court is skeptical that Perfect 10 correctly interprets the display right of the Copyright Act. As stated above, this Court finds no indication in the text or legislative history of the Act that possessing a copy of an infringing image is a prerequisite to displaying it...

Perhaps more troubling is that Forrest cited the silly Aereo "looks like a duck" test to argue that even though it's technically no different than linking, and even though the defendants in this case don't actually host or distribute the image, because it looks like they are hosting it, they can be liable for infringing the display right.

In this particular case, photographer Justin Goldman sued a bunch of media sites for embedding a photo that others had uploaded to Twitter (Goldman had originally posted it to Snapchat, and someone else took it to Reddit, where someone else brought it to Twitter). A bunch of media sites then embedded the tweet, and Goldman sued them all more or less, even though such embeds that show the associated media are a key feature of Twitter.

Judge Forrest allowed the defendants to do an interlocutory appeal, which basically puts the rest of the case on hold to allow a certain part of the case to be appealed to make sure the district court got it right. Interlocutory appeals aren't always allowed and some courts don't really like them very much. In this case, Judge Forrest allowed it to go up to the 2nd Circuit appeals court, but that court has said it won't review the ruling... for now.

Depending on where you stand this may or may not be a good thing. The case now moves back to the lower court (though, potentially with a different judge as Forrest just announced she's leaving the bench at some point "later this year."). It may go to trial, or the remaining defendants may decide to just settle the case and not have to deal with it. If the case does move forward, there are other potential reasons why Goldman may have difficulty winning, including the lack of actual knowledge of infringement by the publishers embedding the tweets.

In either of those situations, Forrest's odd decision is then rendered less impactful. Since it's in the district court, it has no direct precedential value on other cases (though can be cited). And that's at least preferable to the 2nd Circuit blessing Forrest's dismissal of the server test... though not as good as if the 2nd Circuit decides to bless the server test. It's also possible that the issue could come up on appeal later (i.e., not as an interlocutory appeal, but after the case reaches a conclusion in the lower court). Either way, this case is still a bit of a mess, and is yet another example of how bad the law is at dealing with technology.