Sharing photos on Twitter is copyright infringement: a new interpretation of the “server test”

“When the Copyright Act was amended in 1976, the words ‘tweet,’ ‘viral,’ and ‘embed’ invoked thoughts of a bird, a disease, and a reporter,” Judge Katherine B. Forrest noted before breaking with past precedent and holding media companies liable for copyright infringement for linking to a tweet containing a copyrighted photograph.

Photographer Justin Goldman took a photograph of New England Patriots quarterback Tom Brady heading to a meeting to recruit NBA star Kevin Durant to the Boston Celtics. Goldman then posted it on his personal Snapchat. From there, users posted that same photograph on Twitter. From there, various websites, including Time, Yahoo, several Vox Media websites, the Boston Globe, Gannett, and Breitbart, embedded that tweet into their articles. Even though Twitter was the company hosting the image on its servers, Goldman sued those online publications for copyright infringement, since the articles featured the tweet and showed the picture inline. The media companies argued that they did not host the image on their own servers; they merely asked Twitter to have the image appear.

In past precedent, media companies relied on the so-called “server rule,” which meant that web publishers were free to link to full-sized images protected by copyright, so long as the images were stored on another company’s servers. This rule has existed for approximately a decade and was the backbone for the increasingly popular practice of embedding links within articles.

Judge Forrest, however, is seemingly not a fan of the current interpretation of the server test. She held that a distinction exists between a search engine, think Google or DuckDuckGo, and a news site. In her view, the user of a search engine is an active participant in searching for an image, while a viewer of a news site is more passive and merely receives pre-arranged content. She noted that Google provides a service whereby the user navigates from webpage to webpage, while a blog has full-color images awaiting the user regardless of whether the user is searching for that particular content. This, Judge Forrest held, violated Goldman’s exclusive right to display his copyrighted work.

Through this new interpretation, Judge Forrest held that the media companies in question were liable to Goldman for copyright infringement. What this means is that photographers may now have a stronger legal case against websites that embed their copyrighted works into articles without permission. That is, assuming this ruling isn’t overturned on appeal.