Settlement In Tom Brady Photo Case Leaves Issue Of Copyright On Embedded Images Unsettled

from the bring-back-the-server-test dept

A little over a year ago, we wrote about a pretty bad ruling in NY, by Judge Katherine Forrest, arguing that merely embedding content on a site -- even though it's hosted elsewhere -- could be deemed infringing. This went against what has been known as the "server test," which says that the issue is where the content is actually hosted (which server it's actually on), and that merely embedding the image shouldn't lead to new claims of infringement. Considering that, technically, embedding an image is no different than linking to an image, saying that embedding an image that is hosted elsewhere is itself infringing could put much of the basic concept of how the internet works at risk.

This particular case involved a photo of quarterback Tom Brady that had been posted originally to Snapchat. The image, taken by photographer Justin Goldman, made its way from Snapchat to Reddit to Twitter. Some news organizations embedded tweets showing the photo, using Twitter's native embed functionality. Goldman sued a bunch of them. Judge Forrest, citing the Supreme Court's "looks like a duck" test in the Aereo ruling said that embedding qualifies as displaying a work (even though the websites in question aren't hosting anything other than a pointer telling user's computers to go find that image). Even worse, Forrest explicitly rejected the server test, saying it was wrong.

This was poised to be a pretty big deal... except that it's not. Because the entire lawsuit has been settled leaving the question of whether or not the server test is considered valid (especially in NY where the case was filed) unanswered. While there is the Forrest ruling on the books, since it's in a district court it creates no official precedent that other courts need to follow (though that won't stop it from being cited). However, as the linked article notes, there are some other cases challenging the server test and looking at the legality of embeds still going on, so perhaps we won't have to wait long for the issue to bubble up again. One hopes that, this time, a court will accept the basic server test as the only reasonable interpretation of the law.

Filed Under: copyright, embedded, embedding, justin goldman, katherine forrest, server test, tom brady


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  • identicon
    Anonymous Coward, 5 Jun 2019 @ 2:47pm

    Please don't be silly.
    Everyone knows that giving directions to the nearist library is just about the most copyright infringing act an individual can easily commit.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Jun 2019 @ 4:40pm

      Re:

      And if you had a self driving car both you and the car maker would liable if you had it drive you to the library and then .... read some books.

      This is the the stuff of horrors.
      Down with the libraries (and any, theoretical, self-driving cars). Once those are properly dealt wiht, then we can worry about the minor issue of embedding images (and other content in web pages).

      Maybe we should ban Internet Protocol (IP), since most likely the vast majority of copyright infringment in this day and age, is enabled because of it.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Jun 2019 @ 3:01pm

    One hopes that, this time, a court will accept the basic server test as the only reasonable interpretation of the law.

    Why would they do that. We all know that copyright is the end-all be-all of life itself and why would you want to spoil another incoming-for-nothing opportunity like this? Just think of how many more settlements can be extracted for the same instance of infringement.

    reply to this | link to this | view in chronology ]

  • identicon
    Kevin Hayden, 5 Jun 2019 @ 3:03pm

    More dangerous than just copyright infringement!

    How about this scenario:
    1) Some server hosts the image in question, which can be anything, let's say a Creative Commons image for now, in file a.jpg for example.
    2) I embed it (a.jpg) on my website. All well and fine, no infringement.
    3) The server admin at the other end finds a better image (unfortunately it's a copyrighthed image) and replaces the original one with it using the same file name (a.jpg). Because the copyrighted image now appears on my website, I'm suddenly guilty of copyright infringement through no fault or action of my own. Not a huge deal, maybe a civil action and a small payout.
    4) What if the server admin at the other end replaced the contents of a.jpg with a picture of kiddie porn. According to this judge's logic, I'm now guilty of showing child pornography, a criminal offense punishable by jail time, even though I did nothing wrong.

    Judges need to either learn how all this stuff works like Judge Alsup did, or get some trustworthy experts to explain it to them, or else recuse themselves from cases like this on the grounds that they can't make a meaningful ruling because they don't have sufficient knowledge of how the underlying technology works.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Jun 2019 @ 4:27pm

      Re: More dangerous than just copyright infringement!

      I bet there are pages that judges frequent where a linked image could be swapped out for one containing your text to make this point....

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 6 Jun 2019 @ 8:26am

        Re: Re: More dangerous than just copyright infringement!

        As many do-gooder fools have discover the hard way you can never solve a social, legal problem with a physical solution.

        If a physical solution solves the problem them the basic issue was not a social or a legal problem.

        For example you can not build homeless shelters and solve the social issue of drug addiction. Building a homeless shelter does change a person's value system or their body's physical cravings.

        reply to this | link to this | view in chronology ]

    • icon
      Gary (profile), 5 Jun 2019 @ 8:25pm

      Re: More dangerous than just copyright infringement!

      There is a case like that. A political site leeched an image from some guy. Guy notices the hits and sees that they are wankers so he changes the image hosted on his server to something more amusing. Which is reflected on the political site.
      Guy gets charged for hacking the political site. Hijinks ensue! He obviously "hacked" the other site...

      reply to this | link to this | view in chronology ]

  • identicon
    Kevin Hayden, 5 Jun 2019 @ 3:03pm

    More dangerous than just copyright infringement!

    How about this scenario:
    1) Some server hosts the image in question, which can be anything, let's say a Creative Commons image for now, in file a.jpg for example.
    2) I embed it (a.jpg) on my website. All well and fine, no infringement.
    3) The server admin at the other end finds a better image (unfortunately it's a copyrighthed image) and replaces the original one with it using the same file name (a.jpg). Because the copyrighted image now appears on my website, I'm suddenly guilty of copyright infringement through no fault or action of my own. Not a huge deal, maybe a civil action and a small payout.
    4) What if the server admin at the other end replaced the contents of a.jpg with a picture of kiddie porn. According to this judge's logic, I'm now guilty of showing child pornography, a criminal offense punishable by jail time, even though I did nothing wrong.

    Judges need to either learn how all this stuff works like Judge Alsup did, or get some trustworthy experts to explain it to them, or else recuse themselves from cases like this on the grounds that they can't make a meaningful ruling because they don't have sufficient knowledge of how the underlying technology works.

    reply to this | link to this | view in chronology ]

  • icon
    TKnarr (profile), 5 Jun 2019 @ 3:14pm

    I'm not sure the server test is entirely appropriate. With both the browser fetches from the image's server, not the page's. The difference is in display which is what copyright is (or should be) aimed at. In the case of a link the browser displays the image on it's own page (probably an otherwise blank page), and it's obvious the image didn't come from the page that linked to it. An embedded image, though, has it's content (not merely it's location) displayed as part of the page that embeds it. To the user there appears to be no difference between an embedded image fetched from another server and one fetched from the page's server. In both cases it appears to be part of the original page. That's not a mere technicality, that's the heart of what it means to copy something from someone else and present it as part of your work when you distribute your work.

    reply to this | link to this | view in chronology ]

    • identicon
      cpt kangarooski, 5 Jun 2019 @ 3:27pm

      Re:

      No, how the embedded offsite image appears is up to the person(s) with control over the image (they can replace it, and if it’s linked to a lot, the site admin may refuse to serve it) and to the end user with control over how their web browser works. Some web browsers don’t display images inline, or even at all. Others allow image loading to be disabled. Or allow users to override page html or css (using a filter, for example; if you have software that removes ads from web pages, that often works by altering the web page before it displays).

      The webpage author is essentially making suggestions that are usually followed, but has no power otherwise.

      Also, you’re just plain wrong about display. If I give you a piece of paper with text on it and a big hole in the middle and tell you to lay it over a particular page in the newspaper so that the photo shows from the article shows through, but the text is mine, I’m not the one displaying anything.

      reply to this | link to this | view in chronology ]

      • icon
        Thad (profile), 5 Jun 2019 @ 4:00pm

        Re: Re:

        No, how the embedded offsite image appears is up to the person(s) with control over the image (they can replace it, and if it’s linked to a lot, the site admin may refuse to serve it) and to the end user with control over how their web browser works.

        And other assorted points in-between, such as firewalls that block certain sites. Or, if the end user installs an adblocker, whoever maintains its list.

        reply to this | link to this | view in chronology ]

    • icon
      Cdaragorn (profile), 5 Jun 2019 @ 4:01pm

      Re:

      The difference is in display which is what copyright is (or should be) aimed at

      This is flatly wrong. Copyright has never been and never should be aimed at who sees the copyrighted object. It's about who made the copy you're seeing. Which is EXACTLY what it should be about.

      The fact that the end user doesn't know by just looking at the page that the image was actually copied by a different server entirely is not relevant at all. The only important detail is who made the copy. The browser was told to go to another server to get a copy of the image and it went and asked that server for one. The server then chose to create a copy and hand it over to your browser. The only person who has any business being on the line for copyright infringement is the one who setup the server that's actually making copies of the copyrighted content.

      This is also why the "looks like a duck" ruling is so incredibly wrong. The whole freaking point of our courts is to take things that look like something might have been done against the law and DETERMINE IF THE LAW WAS ACTUALLY BROKEN. Choosing to say that because it looks like the law might have been broken we're going to charge you as if it were is literally choosing not to do the job the justices were put in that position to do.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Jun 2019 @ 4:02pm

    It seems that people have been fighting over this "someone else's served-up image framed in a webpage without permission" issue ever since the worldwide web came into being, and it's a bit frustrating that it's never been fully resolved, either the copyright issue or the "stolen" bandwidth issue.

    And also, weren't the feds regularly busting "movie streaming" sites that embedded 3rd-party-uploaded Youtube videos of Hollywood content a decade ago?

    https://torrentfreak.com/movie-site-pleads-for-to-fight-feds-100723/

    At the end of June this year, nine sites connected to movie streaming were targeted by the U.S. Government. ... Last month “Operation In Our Sites” targeted nine domains connected to the offering of first-run movies without consent from the copyright holders. The authorities moved to seize several domains including TVShack.net, Movies-Links.TV, FilesPump.com, Now-Movies.com, PlanetMoviez.com, ThePirateCity.org and ZML.com. US Immigration and Customs Enforcement’s Homeland Security Investigations (HSI) also seized assets from 15 bank, PayPal, investment and advertising accounts.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Jun 2019 @ 4:34pm

    if all Judges can understand is 'it looks like a duck'...

    Perhaps the problem is that our "esteemed Judges" can't seem to comprehend anything more complex than a Duck, so it's easier to say it looks like a Duck, then to say it looks like a 4K CCby JPEG embed...

    reply to this | link to this | view in chronology ]

  • identicon
    dlesko, 6 Jun 2019 @ 1:52am

    thought this was settled already

    images are only embedded in the browser running on the user's computer. judge is an idiot.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jun 2019 @ 2:05am

    Nope, even a symbolic link is a file (hlmgtfy)

    "embedding qualifies as displaying a work (even though the websites in question aren't hosting anything other than a pointer telling user's computers to go find that image)."

    That bracketed text is entirely misleading.

    1) That website did not merely host a clickable hyperlink (a pointer) for its visitors, which is how the web always worked

    2) That website embedded a remote file into its local page, which is most certainly not serving up "a pointer" to a file; it is serving up THE actual contents of the exact specific literal file.

    3) If you think a local copy of a remote file is "the same file" or "an altogether different object" then you are just playing with words. We don't need to solve the nature of "is" -ness to understand this case. On a computer, a pointer to an image file is itself just a file. And they DID show their visitor the contents of THAT file.

    reply to this | link to this | view in chronology ]

    • identicon
      Rocky, 6 Jun 2019 @ 4:04am

      Re: Nope, even a symbolic link is a file (hlmgtfy)

      Uhm, you do know it's the client that goes and fetch all the resources needed to display a html-page, right?

      That means that the content a link to a 3rd party server points to never passes through the first server which means you are wrong.

      And on a computer a pointer is not the same as the file, because you can change the file and the pointer stays the same. In this instance we have a pointer served up by a computer in a server farm that's used on another computer to find a resource on a third computer through several layers of indirection.

      So you saying that the website "embedded a remote file" is just wrong.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Jun 2019 @ 4:07am

      Re: Nope, even a symbolic link is a file (hlmgtfy)

      2) That website embedded a remote file into its local page, which is most certainly not serving up "a pointer" to a file; it is serving up THE actual contents of the exact specific literal file.

      How wrong you are, an embed is a pointer with an automatic fetch, as opposed to a link, which is a pointer with a manual fetch. The difference being, go fetch and display the content here on the page, and open a new page to display the content if the user chooses to do so.

      reply to this | link to this | view in chronology ]

  • icon
    Zof (profile), 6 Jun 2019 @ 4:26pm

    "Embedded"

    "Oh, those Getty Images were just embedded from some random server somebody set up on amazon I guess."

    reply to this | link to this | view in chronology ]


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