Court Rules Embedding a Tweet Can be Copyright Infringement

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rgMekanic

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In a report on Torrentfreak, Justin Goldman filed a lawsuit after a photo of Tom Brady went viral and ended up being used on several news outlets. A New York federal court has ruled people can be held liable for copyright infringement if they embed a tweet hosted by a third party. News outlets stated they did nothing wrong, as no content was hosted on their servers, US District Court Judge Katherine Forrest disagrees. She rejects the “server test” argument and rules that the news organizations are liable.

I have to say I completely disagree with this courts decision. As a photographer, copyright is important to me. However I also realize that any image I post online is subject to people using it, and in this situation, if they were embedding the tweet, they were essentially crediting the photographer, and driving traffic to the original source.

“[W]hen 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,” Judge Forrest writes.
 
rgMekanic said:
in this situation, if they were embedding the tweet, they were essentially crediting the photographer, and driving traffic to the original source.
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Measurable traffic? Traffic the photographer got paid for ? I doubt it. And maybe the photographer didn't want his server bogged down by the massive number of accesses to it that these "news outlets" were causing.

Besides, that doesn't matter. Copyright is a right to exclude others from using your work, not a right to get paid for that work.
If someone is using a photo you have the copyright to without your explicit or implicit permission, it's copyright infringement, even if you got site traffic or even money out of the infringement.

Disclaimer: This is not legal advice. I studied copyright law in law school, but I'm a patent attorney, not a copyright attorney. Copyright law is complex and at times picky. If you have a copyright issue, I believe you should consult an attorney who specializes in copyright, preferably in the field your work is in.
 
EODetroit said:
This judge is an idiot and should be banned from deciding cases involving technology in general.
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Yes, she is and it will most likely be overturned by the 2nd Circuit on appeal. She got it all wrong for a number of reasons.
 
Getting credit does not get your family fed
how ever, them using your work on a paid network gets their family fed.

I do 3D imagery, the hell with "exposure" give me a dollar
 
Loose Nut said:
Getting credit does not get your family fed
how ever, them using your work on a paid network gets their family fed
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Explain to me how he was making money from tweeting a picture before it was picked up by news outlets?
 
RealBeast said:
Copyright law is still rooted in the original 1790 Act, "updated" in 1909 and 1976 (with a few other tweaks) and is not able to keep up with the changing technology.
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The Digital Millennium Copyright Act (DMCA) of 1998 wasn't a tweak. The Internet as we know it wouldn't exist without it.
And I know of no legal precedent that states putting something on Snapchat makes all subsequent use of it "fair use."
There's a multi-part balancing test for whether something is fair use, and Snapchat isn't mentioned in it.
 
thesmokingman said:
Embedding in this case is circumventing the fees to display said picture. Re-read the quote you have in your OP.
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There were no fees to display said picture since it was already displayed publicly on an open platform.

Twitter TOS

By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). This license authorizes us to make your Content available to the rest of the world and to let others do the same. You agree that this license includes the right for Twitter to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals for the syndication, broadcast, distribution, promotion or publication of such Content on other media and services, subject to our terms and conditions for such Content use. Such additional uses by Twitter, or other companies, organizations or individuals, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.
 
rgMekanic said:
Explain to me how he was making money from tweeting a picture before it was picked up by news outlets?
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Explain to me why the news outlets didn't pay him to use his copyrighted photo.
Yours is the typical software-pirate approach: "They didn't lose money because I never would have bought their game anyway."
You want to let major corporations pull that crap, then get ready to get major-league screwed.

Go ask Kyle what he would think of another site copy-pasting [H]ardOCP's content, and then telling him "you didn't lose money because we weren't paying you before and you had already posted it." I'm sure Kyle understands copyright better than you apparently do.
 
rgMekanic said:
There were no fees to display said picture since it was already displayed publicly on an open platform.

Twitter TOS

By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). This license authorizes us to make your Content available to the rest of the world and to let others do the same. You agree that this license includes the right for Twitter to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals for the syndication, broadcast, distribution, promotion or publication of such Content on other media and services, subject to our terms and conditions for such Content use. Such additional uses by Twitter, or other companies, organizations or individuals, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.
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What does posting Twitters TOS have to do with it????

You are completely missing your own points. Re-read the quote from the OP.
 
rgMekanic said:
There were no fees to display said picture since it was already displayed publicly on an open platform.

Twitter TOS

By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). This license authorizes us to make your Content available to the rest of the world and to let others do the same. You agree that this license includes the right for Twitter to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals for the syndication, broadcast, distribution, promotion or publication of such Content on other media and services, subject to our terms and conditions for such Content use. Such additional uses by Twitter, or other companies, organizations or individuals, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.
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Did defendants present this as a defense? If not, why not?
If so, did it get shot down as a contract of adhesion that was contrary to public policy?

I'm a smart guy, and a trained IP attorney, but I'd read a Federal judge's opinion three times and wait a week before I assumed I knew better than they did on an issue of copyright law.
 
People just take for granted that they can steal every image posted online freely. The only reason we don't see more of a pushback is because there isn't a large group like MPAA or RIAA that actively spend money protecting their ip. In all reality stealing a movie and stealing a picture are violating the same principle, and to argue against that, would be the same as saying that one artists work is protected while anothers has no value. The meta rape of content has been going on for a long time, essentially since the advent of the internet, but recently, especially with the getty/google compromise, we're starting to see actual content creators making a comeback.
 
When did this forum get overrun with copyright trolls? If you post your image on the internet it's linkable hence the HT in HTTP. If someone links it maybe you shouldn't post it without watermark... Common sense ffs.
 
Maybe this will help mitigate half the garbage these media outlets put out then. No original photo? No b.s story to follow with it then :p
 
thesmokingman said:
What does posting Twitters TOS have to do with it????

You are completely missing your own points. Re-read the quote from the OP.
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This one boggles the mind. It's pretty clear the photographer should be SOL as far as copyright goes.
How does this section not seem pretty relevant?
This license authorizes us to make your Content available to the rest of the world and to let others do the same. You agree that this license includes the right for Twitter to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals for the syndication, broadcast, distribution, promotion or publication of such Content on other media and services, subject to our terms and conditions for such Content use. Such additional uses by Twitter, or other companies, organizations or individuals, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.
 
pcgeekesq said:
Measurable traffic? Traffic the photographer got paid for ? I doubt it. And maybe the photographer didn't want his server bogged down by the massive number of accesses to it that these "news outlets" were causing.

Besides, that doesn't matter. Copyright is a right to exclude others from using your work, not a right to get paid for that work.
If someone is using a photo you have the copyright to without your explicit or implicit permission, it's copyright infringement, even if you got site traffic or even money out of the infringement.

Disclaimer: This is not legal advice. I studied copyright law in law school, but I'm a patent attorney, not a copyright attorney. Copyright law is complex and at times picky. If you have a copyright issue, I believe you should consult an attorney who specializes in copyright, preferably in the field your work is in.
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By this rationale it would also have been a copyright infringement if retweeted? I think it is pretty ridiculous.

This guy knows what twitter is and how it works. That includes retweeting and embedding. Once he put it on twitter he lost any right to complain about that. The pure act of putting it on twitter implies agreeing to retweets and embeds.
 
capt_cope said:
This one boggles the mind. It's pretty clear the photographer should be SOL as far as copyright goes.
How does this section not seem pretty relevant?
This license authorizes us to make your Content available to the rest of the world and to let others do the same. You agree that this license includes the right for Twitter to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals for the syndication, broadcast, distribution, promotion or publication of such Content on other media and services, subject to our terms and conditions for such Content use. Such additional uses by Twitter, or other companies, organizations or individuals, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.
Click to expand...

You did not read the article either huh? Twitter can write whatever the heck they want in the TOS, it doesn't mean it is legally binding for one thing. Second the Judge is damn clear that embedding it and storing the images on Twitter servers regardless of whatever the fuck Twitters TOS says, doesn't "shield them" from infringement. The key below is when others went to re-tweet!

“[W]hen 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,” Judge Forrest writes.
Click to expand...
 
Zarathustra[H] said:
By this rationale it would also have been a copyright infringement if retweeted? I think it is pretty ridiculous.
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No, because that's still the "unrelated third party" (Twitter) using the image. If he licensed Twitter to distribute the image, that could include retweets on Twitter. It wouldn't include publication by "BREITBART NEWS NETWORK, LLC, HEAVY, INC., TIME, INC., YAHOO, INC., VOX MEDIA, INC., GANNETT COMPANY, INC., HERALD MEDIA, INC., BOSTON GLOBE MEDIA PARTNERS, INC., and NEW ENGLAND SPORTS NETWORK, INC.," the defendants here.

Also note, in a very NON-SUBTLE IMPORTANT point everyone here is missing or ignoring, the "Court divided the litigation into two phases—the first to determine whether defendants’ actions violate the exclusive right to display a work (here an embedded Tweet), and the second to deal with all remaining issues, such as the liability (or non-liability) for other defendants and any defenses that have been raised."

This ruling only addressed the first issue: "when defendants caused the embedded Tweets to appear on their websites, their actions violated plaintiff’s exclusive display right."
It didn't address any defenses that might be raised, about which the Court says:

there are genuine questions about whether plaintiff effectively released his image into the public domain when he posted it to his Snapchat account. Indeed, in many cases there are likely to be factual questions as to licensing and authorization. There is also a very serious and strong fair use defense, a defense under the Digital Millennium Copyright Act, and limitations on damages from innocent infringement.
​
The partied agreed to settle the first issue before proceeding to these defenses.

Still think it's "ridiculous?" Even though you, like so many others here clearly didn't read the Judge's opinion?
It's only 25 pages, double-spaced 12pt Times-Roman font with 1" margins. And it's pretty plain English, too.
Good writing by Judge Forrest, even if you disagree with the conclusion.

Like I said before, I'd read an opinion three times and wait a week before I assumed I knew better than a US District Judge on an issue of copyright law.
Especially one in the 2nd Circuit, which is a major circuit for Copyright issue (because of all the publishers based in NYC).
Again, this is not legal advise. I am not a copyright attorney.

Read the opinion yourself, there's a link to it in the article. Especially you, RGMEKANIC. You represent the [H], you have a duty not to make a fool of yourself.
 
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thesmokingman said:
You did not read the article either huh? Twitter can write whatever the heck they want in the TOS, it doesn't mean it is legally binding for one thing. Second the Judge is damn clear that embedding it and storing the images on Twitter servers regardless of whatever the fuck Twitters TOS says, doesn't "shield them" from infringement. The key below is when others went to re-tweet!
Click to expand...
One might argue that this part of the tos
for the syndication, broadcast, distribution, promotion or publication of such Content on other media and services,
Click to expand...
sort of implicitly grants others the right to embed your content on their site ("media and services") but, as you say, it's probably not legally binding. I suppose twitter would need to require users to esign the tos (and retain a copy) for it to be actually binding, otherwise it doesn't mean much.
 
EODetroit said:
This judge is an idiot and should be banned from deciding cases involving technology in general.
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You know your wrong
(1) Snapchat is not public domain.
(2) It was posted on Snapchat only.
(3) Someone infringed copyright and posted it on Reddit.
(4) Someone infringed copyright and posted it on Twitter.
And so down the line

RealBeast said:
Yes, she is and it will most likely be overturned by the 2nd Circuit on appeal. She got it all wrong for a number of reasons.
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I don't think so
 
shspvr said:
You know your wrong
(1) Snapchat is not public domain.
(2) It was posted on Snapchat only.
(3) Someone infringed copyright and posted it on Reddit.
(4) Someone infringed copyright and posted it on Twitter.
And so down the line


I don't think so
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Did he sue the person who took it off snapchat and posted on reddit? Or the one who posted on Twitter?
 
gxp500 said:
Did he sue the person who took it off snapchat and posted on reddit? Or the one who posted on Twitter?
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That I don't know but supposedly he taking a lot of people and company to court over it and to me he nothing more then a little whine cry baby, I think in long it going to hurt him.
 
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pcgeekesq said:
The Digital Millennium Copyright Act (DMCA) of 1998 wasn't a tweak. The Internet as we know it wouldn't exist without it.
And I know of no legal precedent that states putting something on Snapchat makes all subsequent use of it "fair use."
There's a multi-part balancing test for whether something is fair use, and Snapchat isn't mentioned in it.
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The DMCA was far more about controlling the copying of video tapes, CDs, and unauthorized decoding of encrypted satellite signals then the Internet as we know it today. When it passed, a 33.6 modem was still pretty cool tech, a 56k was top end and if you had a DSL/cable IP connection, you were [H]. Various court cases and actions by companies have extended it beyond the scope originally intended by Congress. Looking at Deere Corp here.
 
Dead Parrot said:
The DMCA was far more about controlling the copying of video tapes, CDs, and unauthorized decoding of encrypted satellite signals then the Internet as we know it today.
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Dead wrong. A key part of the DMCA was the safe-harbor provisions for ISPs enacted in section 512(c). Without it, the Internet you know today -- Google, Facebook, YouTube, Reddit, and so on -- couldn't exist. These provisions of the DMCA, for all that they are abused sometimes, are crucial to the keeping the above-named services, and many others including this very forum, from being sued out of existence. See https://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act (enacted as sec. 512 of the DMCA)

Copyrgiht law is complex. People who know nothing about it should STFU about it instead of spreading falsehoods.
 
shspvr said:
That I don't know but supposedly he taking a lot of people and company to court over it and to me he nothing more then a little whine cry baby, I think in long it going to hurt him.
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Why do people even post here when they apparently haven't bothered to read anything but third-hand BS about the case at issue? The link to the article is in the original post, and the article includes a link to the judge's opinion. Y'all do know how to click on a link, right?
 
RealBeast said:
Yes, she is and it will most likely be overturned by the 2nd Circuit on appeal. She got it all wrong for a number of reasons.
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Prove it. I doubt you could even point out a single logical error in the judge's opinion, or where it contradicted an applicable precedent, but I'd like to see you try. Just ONE would be nice. And remember, the parties agreed to determine the validityof the asserted defenses, and whether there were any damages, at a later, not-yet-conducted, stage of the trial. The judge has signaled she might find in favor of the Defendants during that stage.
 
Dunno, I kinda like the idea of millions of self-proclaimed "journalists" working from their moms' basements fearing the shared tweet, especially all that opinionated political crap.

Spill their "high end juice?" Perhaps more like barf their guts out:

drop_high_end_juice.0.png
 
pcgeekesq said:
Dead wrong. A key part of the DMCA was the safe-harbor provisions for ISPs enacted in section 512(c). Without it, the Internet you know today -- Google, Facebook, YouTube, Reddit, and so on -- couldn't exist. These provisions of the DMCA, for all that they are abused sometimes, are crucial to the keeping the above-named services, and many others including this very forum, from being sued out of existence. See https://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act (enacted as sec. 512 of the DMCA)

Copyrgiht law is complex. People who know nothing about it should STFU about it instead of spreading falsehoods.
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Don't think it was a falsehood. The Internet as we know it today mostly didn't exist when the DMCA was passed. Most websites were static HTML with those obnoxious flashing banner ads. Napster was a year or so in the future. The big concerns for the media companies of the era were that Macrovision protection for video tape was easily bypassed and companies were selling double deck units that allowed easy tape dubbing and the laws on the legality of that were conflicting. Lawsuits against companies making satellite receivers that decrypted signals without a subscription were fairly common, again with mixed outcomes. And the new tech called DVD had the studios worried about folks making hundreds of near perfect digital copies with little recourse available to the IP owners. When it was passed, the important part of the DMCA for the media companies were the anti circumvention portions. The safe harbor stuff became more important as the Internet grew from a bunch of BBS type servers to what we have today.
 
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