Several decisions this week call into question established precedent on linking and embedding — actions that Internet users engage in on social media and online publishing every day. This threatens the legal certainty online businesses have long relied on, as well as impacting the expectations of their users.
These cases involve legal theories which go beyond allegations of direct or secondary liability. Rather than target the user that posted an allegedly infringing image or other work, or sending a DMCA takedown to the platform where it has been posted, litigants have been pursuing other websites that report on such works, but that don’t host them directly — they merely link to or embed content from another website.
Yesterday, in a surprise decision departing from precedent, a New York district court judge denied a motion to dismiss on behalf of online news sites (Breitbart, Heavy Inc., Time Inc., Yahoo, Vox Media, Gannett Company, Herald Media, Boston Globe Media Partners and New England Sports Network) who had embedded tweets that contained a photo from plaintiff Justin Goldman. As EFF explained in a blog post yesterday, and in legal analysis published when they filed an amicus brief in support of defendants in October, this decision departs from precedent on the “server test,” as embodied in an important Ninth Circuit case involving serial litigant Perfect 10. For a more in-depth analysis, see Prof. Eric Goldman’s comprehensive blog post on “in-line linking” and the complex legal and technological issues at play here.
The judge diminished valid concerns from defendants that this could “cause a tremendous chilling effect on the core functionality of the web”, as well as from amici EFF and Public Knowledge that it could “transform the Internet as we know it.” She mentions defenses that may be available, such as “a very serious and strong fair use defense,” the DMCA, limited statutory damages due to potentially qualifying as innocent infringement, and questions about Goldman’s photo being effectively released into the public domain once posted on Snapchat(?). Defendants can continue to litigate these issues in district court, as the case is still at the motions stage. But the need to spend time and money litigating these basic Internet functions, even if defenses are found to apply, puts media and online services and their users at risk, while distracting from their core mission.
On Wednesday, in contrast, a California district court judge dismissed a lawsuit filed in November by Playboy against Boing Boing, finding that the website’s act of linking to a collection of images hosted on Imgur was not infringing. Mike Masnick notes that Playboy has increasingly been filing questionable lawsuits. The judge has given them the opportunity to refile in the next week and a half. It will be interesting to see if they are deterred by the judge’s explicit skepticism, or emboldened by yesterday’s decision in New York.
DisCo has also covered the Court of Justice of the European Union wrestling with these issues in recent years, including the 2014 Svensson   and 2016 GS Media    cases. According to my colleague Maud Sacquet, the GS Media ruling was “an extremely worrying decision, with potentially far-reaching consequences for the freedom to link, and the functioning of the Internet in Europe.”
Newsworthy statements are made constantly on services like Twitter, including by the current U.S. President. The ability of online publications and users to embed and report on tweets, and link to media on other sites in order to comment on other sources, is as important as ever. Recent copyright disputes threaten the certainty that they can continue to do so.