Rejecting years of settled precedent, a federal court in New York has ruled that you could infringe copyright simply by embedding a tweet in a web page. Even worse, the logic of the ruling applies to all in-line linking, not just embedding tweets. If adopted by other courts, this legally and technically misguided decision would threaten millions of ordinary Internet users with infringement liability.
This case began when Justin Goldman accused online publications, including Breitbart, Time, Yahoo, Vox Media, and the Boston Globe, of copyright infringement for publishing articles that linked to a photo of NFL star Tom Brady. Goldman took the photo, someone else tweeted it, and the news organizations embedded a link to the tweet in their coverage Goldman said those stories infringe his copyright.
Courts have long held that copyright liability rests with the entity that hosts the infringing content—not someone who simply links to it.
This is generally known as the “server test,” originally from a 2007 Ninth Circuit case called Perfect 10 v. Amazon, and provides a clear and easy-to-administer rule. It has been a foundation of the modern Internet.
We hope that the Ninth’s Circuit ruling does not stand. If it did, it would threaten the practice of in-line linking that benefits millions of Internet users every day.