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Is the integration of content on social networks legal? The courts do not agree


Does “embedding” an image from a social media post violate copyright? Federal courts are divided, and recent decisions have concluded that embedding social media posts on third-party websites may constitute copyright infringement.

The new rulings mark a radical departure from previous decisions of the United States Court of Appeals for the Ninth Circuit and show a trend for New York district courts to abandon the Ninth Circuit “server test”. The copyright implications of social media integration are finally unveiling; some cases are only a few weeks old and show a clear conflict between the courts.

Regardless of which court prevails as this law unfolds, it will change the course of social media use in the future.

What is the integration of content on social networks?

Embedding is a type of link that allows a social network image to appear directly on another website, which has been commonly used by digital media sites for years. Rather than obtaining permission directly from the content creators, digital media sites typically relied on the platform’s terms and policies for the use of the content posted there.

But the federal courts in California and New York have taken radically different views on whether such an integration constitutes a violation. California courts and the Ninth Circuit have allowed integration when the sharer has not saved a “copy” of the image to their system or delivered the image directly to users, while New York courts reject this approach. , seeing integration as an escape route and an end. around copyright.

The US District Court for the Southern District of New York said the Ninth Circuit misinterpreted the law and that when others embed an image or video, they always “show” it. And exhibitions of works are still protected by copyright law.

Given the divergent views of these Second and Ninth Circuit courts – arguably the most influential on social media laws – users may be careful to rely only on platform terms and policies to integrate posts. other users.

The “server test”

Historically, courts have used “server testing” to assess whether a business embeds an image on its servers or delivers the image directly to users. Since copyright law required the image to be fixed on a tangible medium, courts considered whether the image had been saved or uploaded to the publisher’s server or computer prior to its redistribution. .

Modern built-in encoding does not store or copy the image to the publisher’s server, but instructs the user’s browser how to download the image directly from the platform, like Instagram, Facebook, or Twitter. In other words, it is “a pointer directing a user to a source of information”.

The courts then relied on the server test to conclude that the digital media websites were not responsible for a direct copyright infringement because there was no distribution of the image. to users.

For example, the test was applied in Perfect 10 Inc. v Amazon Inc., where Google and Amazon used photographs of models from other sites using integrations, which they claimed was not direct copying or distribution. The Ninth Circuit found that since the images on third-party websites were not recorded on Google’s site, but only linked to their actual sources, they were not “copies” and therefore counterfeit. The Ninth Circuit therefore focuses only on the copy itself, while ignoring the display rights of the copyright holder.

The New York Southern District court recently rejected this reasoning. The court said the Copyright Act is “technologically neutral” and that what matters is “not how a work is shown, but how a work is shown.” The courts have determined that the “server rule is contrary to the test and historic legislation of the Copyright Act.” Notably, the Copyright Law did not contemplate software or the Internet when it was enacted.

Other New York cases have also questioned the Ninth Circuit’s “server test” stating that “owning a copy of a forged image” is not “a prerequisite for its display” and that copyright infringement “should not be based on technical processes that are invisible and imperceptible to the viewer.

In essence, the courts in the Southern District of New York have said that regardless of how the photograph got there, showing a copyrighted photo on a website violated a rights holder’s exclusive right to author to display his work. They claim that technological distinctions in the way the work is displayed contradict the broad protection offered by the Copyright Act.

Some decisions even said that although social media sites “clearly provide for the possibility for entities … Courts have dismissed the fair use dismissal motions, declaring that sharing such content is not a transformative use.”

California courts have noted the New York trend. The United States District Court for the Northern District of California even said that, unlike the “Southern District of New York, this court is not free to ignore the Ninth Circuit precedent.”

So, for now, California courts are still following the Ninth Circuit rules. “Server test” and dismiss claims that social media companies are contributively infringing copyrights for their onboarding technology.

Pay attention

After these mixed decisions, even social media platforms have warned their users of the risks of their onboarding technology, encouraging them to seek permission directly from the content creators.

New York’s federal district courts are not following the server test, and cases have yet to get to the United States Court of Appeals for the Second Circuit for a clear decision. Until then, digital media websites need to be careful when embedding content on their sites.

This column does not necessarily reflect the opinion of the Bureau of National Affairs, Inc. or its owners.

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Author Info

Adam wolek is an intellectual property partner with Fox Rothschild LLP in Chicago.

Brieanne scully is a partner of Fox Rothschild LLP in New York.

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