NY Judge Holds Embedded Tweets Can Constitute Copyright Infringement

What is the “server test?”

A case currently before a New York federal judge is already causing ripples among the legal community. In the case of Justin Goldman v. Breitbart News Network, LLC, plaintiff Goldman accused several publications of violating his copyright by embedding tweets of his photo with the Patriots quarterback Tom Brady into their news stories. The photo was initially posted by Goldman to Snapchat, but after it went viral users uploaded it to Twitter. Now, the case may lead to major changes in copyright infringement law in the Ninth Circuit.

The Server Test 

In the federal Ninth Circuit, copyright infringement cases often involve the so-called “server test.” The server test asks the court determine liability for copyright infringement based on whether the image in question is hosted on the publisher’s server or if the publisher embedded or linked to an image hosted elsewhere. Images that are merely embedded or linked will not generally give rise to copyright infringement by the publisher.
The server test was first developed in the case of Perfect 10, Inc. v. Amazon, Inc. This 2007 case from the Ninth Circuit addressed the issue of whether Google’s hyperlinking and framing as part of an image search constituted an infringement of Perfect 10’s images. The Ninth Circuit held that linking is not the same as hosting the material yourself.

Moving Away From the Server Test 

The server test has continued to guide case law in the Ninth Circuit since its inception. Now, however, one federal judge is questioning its continued relevance. In the case of Goldman v. Breitbart News Network, LLC, defendant publishers sought summary judgment based the server test. Judge Katherine Forrest rejected the motion for summary judgment and stated that the server test has not been adopted broadly outside of the Ninth Circuit. Further, according to Judge Forrest, the language of the Copyright Act and Supreme Court cases do not create a rule that allows the physical location of the image to determine who displayed the work. 
As the case continues to wind its way through the legal system, it will surely become one to watch. If the decision stands, it could have significant implications for online publishers who often depend on in-line linking. It could also have major effects in copyright infringement cases both within the Ninth Circuit and beyond.