Katherine Forrest, an Obama-appointed federal judge in New York, has overturned a bedrock principle of internet law, ruling that embedding a copyrighted work can constitute a copyright infringement on the part of the entity doing the embedding.
The ruling — likely to be challenged — overturns the 2007 “Perfect 10” precedent (settled in a California court) that holds that copyright infringement takes place when someone makes an infringing copy, not when someone links to an infringing copy (including embeds, which are a form of link).
Judge Forrest’s decision rests on a serious misapprehension of the process of embedding; in the ruling, the judge characterizes embedding as a kind of exotic technical activity undertaken by programmers, rather than a largely automated process undertaken by millions of Americans (just pasting a link into many content management systems will produce a “onebox”-style embed).
Perfect 10 has been the bedrock principle for internet publishing and business planning for more than a decade (indeed, it’s the principle that undergirded the web from the earliest days, and that principle was merely affirmed in 2007). Linking to things on the internet is a statement of fact — “this thing exists here” — and the way that the link is handled is determined by the user’s tools, not the publisher’s links. Sometimes, users’ browsers prefetch links, sometimes they block them. Hosting an infringing image is copyright infringement, but if linking to that image is also infringing, then much of our discourse is off-limits, including vital questions like “Hey, I just found this image and I think it might be infringing, can someone tell me if I’m right?”
This week, a California judge dismissed a lawsuit that Playboy brought against us, in which theories similar to those that Judge Forrest heard were advanced by Playboy to argue that we had infringed against its copyright. Our judge wrote that they were “skeptical that plaintiff has sufficiently alleged facts to support either its inducement or material contribution theories of copyright infringement” — a view grounded in Perfect 10’s precedent. (Playboy has 12 days to refile an amended complaint or let the matter drop).
Obviously, Judge Forrest’s ruling is unwelcome news for us — and for everyone else who publishes material on the web. It’s also a bit of history repeating: in 1992, a California court held that sourcecode was a form of First Amendment-protected speech and therefore the government could not prohibit its publication; in 2000, a New York judge overturned the bright-line rule and said that publishing sourcecode was only expressive speech under some circumstances, allowing entertainment giants to invoke the authority of the US government to shut down code publication when it upset their apple-carts.
A lot rests on what happens next: the defendants in the tweet-embedding case will likely appeal, and if the ruling is upheld and goes to the appeals court and is upheld again, there will be a deep “circuit split” between California and New York, in which US internet users will be subject to two totally opposite interpretations of federal law depending on where they — or their legal aggressors — live. What’s more, the circuit split will relate to something that millions of people do every day, and that often pisses someone off (a common reason to embed a web resource is to criticize it), meaning that deep-pocketed publishers will come under fire from people represented by contingency lawyers looking for a fat payday; and deep-pocketed public figures will be able to attack small publishers by spending them into penury through drawn-out legal shenanigans that exploit this ambiguity.
This is exactly the sort of thing that generally ends up before the Supreme Court, and it’s very hard to handicap how the court will go. Don’t count on “progressive” judges to side with the internet on this one: Ruth Bader Ginsburg has never met an overbroad copyright law she didn’t love (this may be thanks to her daughter’s views).
Courts have long held that copyright liability rests with the entity that hosts the infringing content—not someone who simply links to it. The linker generally has no idea that it’s infringing, and isn’t ultimately in control of what content the server will provide when a browser contacts it. This “server test,” originally from a 2007 Ninth Circuit case called Perfect 10 v. Amazon, provides a clear and easy-to-administer rule. It has been a foundation of the modern Internet.
Judge Katherine Forrest rejected the Ninth Circuit’s server test, based in part on a surprising approach to the process of embedding. The opinion describes the simple process of embedding a tweet or image—something done every day by millions of ordinary Internet users—as if it were a highly technical process done by “coders.” That process, she concluded, put publishers, not servers, in the drivers’ seat:
[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.