Copyright infringement in the age of the Internet, and more recent, in the age of social media, has become a treacherous bog to navigate, as courts struggle to catch up with the complexity and speed of evolving technology and the exploding amount of content published to the Internet, often with little to no regard for (or more accurately knowledge of) the law that protects many photographs and other original works.

Some of the most treacherous ground involves embed or inline links. An embed or inline link is HTML code, which serve as instructions to incorporate an image hosted on a third-party server into a webpage. It differs from a hypertext link in that a hypertext link, while also HTML code, does not incorporate the image, but points or navigates a user to a different webpage or (URL) where which the image is hosted. Basically, one shows the image, the other directs a user to the image. The difference is critical when is comes to the display rights of copyright owners, under 17 U.S.C. § 106(5). That provision grants the "owner of the copyright" the exclusive right "to display the copyrighted work publicly". Id. So the question for online publishers is whether creating an embed or inline link infringes upon this right? Google does it all the time, right?

The issue becomes even more complicated when the owner publishes his work on a social media website, like Facebook (or YouTube), which in turn creates and allows users to use embed links on their own websites, particularly when the terms of service for the social media website are less than clear.

Stepping into the bog, on February 15, 2018, the United States District Court for the Southern District of New York, in Goldmam v. Breitbart News Network, LLC, 302 F. Supp. 3d 585 (S.D.N.Y. 2018) decided that "when 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," rejecting application of "the Server Test," as "neither appropriate to the specific facts of this case, nor, this Court believes, adequately grounded in the text of the Copyright Act." Id. at 586, 596.

In rejecting the Server Test, Judge Forrest in Goldman also rejected the decision of the United States Court of Appeals for the Ninth Circuit's holding in Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007), in which the Ninth Circuit adopted the "Server Test" for direct infringement copyright claims of an owner's display rights under 17 U.S.C. § 106(5), when considering whether Google's search engine violated display rights by inline linking to images. The Server Test demarcates the line of infringement, that "a computer owner that stores an image as electronic information and serves that electronic information directly to the user 'i.e., physically sending ones and zeroes over the [I]internet to the user's browser' is displaying the electronic information in violation of a copyright holder's exclusive display right" but that "the owner of a computer that does not store and serve the electronic information to a user is not displaying that information, even if such owner in-line links to or frames the electronic information." Id. at 1159-60 (internal citations omitted). The Ninth Circuit reasoned that "[b]ecause Google's computers do not store the photographic images, Google does not have a. copy of the images for purposes of the Copyright Act. In other words, Google does not have any 'material objects ... in which a work is fixed ... and from which the work can be perceived, reproduced, or otherwise communicated' and thus cannot communicate a copy," under 17 U.S.C. § 101. Id. at 1160-61.

While that was sufficient to get Google off the hook for direct infringement for inline linked full-size images, the Ninth Circuit nonetheless found that (1) Google may be subject to contributory liability for infringing sources, and (2) Google's thumbnails, which were stored on Google's servers, did constitute direct infringement, but that Google had established a Fair Use defense. Id. at 1159-60, 1168.

In rejecting the Ninth Circuit's approach, S.D.N.Y. District Court Judge Forrest in Goldman found that, first, "this Court is skeptical that Perfect 10 correctly interprets the display right of the Copyright Act" in that "this Court finds no diction in the text or legislative history of the Act that possessing a copy of an infringing image is a prerequisite to displaying it". 302 F. Supp. 3d at 1787. Goldman, while disagreeing with the Ninth Circuit, also distinguished Perfect 10, in that to access images on Google, the "user takes a volitional action of his own to display an image," and that "Google's search engage provided a service whereby the user navigated from webpage to webpage, with Google's assistance," accessing the full-size image "after clicking on one of the thumbnails and engage[ing] in a direct connection with third-party websites, which are themselves responsible for transferring content." Id. at 593, 596. In the court's view in Goldman, that was "manifestly not the same as opening up a favorite blog or website to find a full color image awaiting the user, whether he or she asked for it, looked for it, clicked on it, or not." Id. at 596.

Few other courts have directly addressed this issue; indeed, Goldman canvassed the cases that have come remotely close, id. at 591-92, leaving Perfect 10 and Goldman as the two leading cases on this issue. See also The Leader's Ins., LLC v. Jackson, 2017 U.S. Dist. LEXIS 193555, 2017 WL 562915 (N.D. Tex. Nov. 22, 2017) (rejecting Perfect 10); Flava Works, Inc. v. Gunter, 2011 U.SA. Distilled. LEXIS 98451, 2011 WL 3876910 (N.D. Ill. Sept. 1, 2011) (rejecting Perfect 10 that "inline linking can never cause a display of images or videos that would give rise to a claim of direct copyright infringement") rev'd on other grounds, 689 F.3d 754 (7th Cir. 2012) (adopting Perfect 10 for contributory infringement claims).

Outside of the Ninth Circuit, embed and inline links should give Internet publishers pause before posting images or other content subject to copyright into articles or websites.

This article is for informational purposes, is not intended to constitute legal advice, and may be considered advertising under applicable state laws. For more information, or to discuss potential representation, contact Ray & Counsel, P.C.