US federal judge: retweets, repos? Get ready to be a copyright infringer

Published on March 01, 2018

US federal judge: retweets, repos? Get ready to be a copyright infringer
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From the translator : the decision of one of the US courts says that reposts, retweets and the like on your web pages can easily become a reason for you to be recognized as an infringer of copyright. And retweet and repost is very difficult, this is done by qualified programmers, in any case, Judge Katerina Forrest thinks so. In [] text from the translator.

Rejecting a long-standing precedent , a federal judge in New York ruled [ PDF ] that you could become a copyright infringer simply by embedding (sharing) a tweet on your web page. It is especially awful that the logic of this decision can be applied to all embedded links on the page, and not just to tweets. If other courts start to use this incorrect solution from a technical and legal point of view, then millions of ordinary users may face liability for violating the law.

This case began when Justin Goldman accused electronic media, including Breitbart, Time, Yahoo, Vox Media and the Boston Globe of copyright infringement, because of the publication of articles that contained links to photos of the National Football League star Tom Brady (Tom Brady). Goldman took a photo, someone tweeted it, and news organizations embedded this tweet in their materials (the photo was valuable from a news point of view, as it showed Brady's presence in the Hamptons when the Celtics tried to hire Kevin Durant )). Goldman claimed that this all violated his copyright.

The court for a long time adhered to the fact that the responsibility falls on the node, which distributes illegal material, and not on who simply refers to it. The one who shares the link in the general case has no idea that this is illegal material and what kind of material the server will give to the person completely uncontrollably when the browser connects to it. This “server test” appeared in 2007 in a case from 9 districts , which was called Perfect 10 against Amazon and gave a simple rule of thumb. This is the basis of the modern Internet.

Judge Katherine Forrest (Katherine Forrest) rejected the “9th district server test”, in particular, basing her decision on a very surprising approach to the process of embedding tweets or images into a page. Her opinion is that this is a very complex technical process performed by programmers, although it is performed by millions of ordinary Internet users every day. Therefore, from her point of view, the main responsibility lies with those who embed the tweet into their page:

When the respondents built in tweets on the pages of their web resources, their actions violated the exclusive rights to demonstrate [the copyrighted object]; the fact that the image is hosted on a server that is owned and followed by an unrelated third party (Twitter) does not remove the guilt from the respondents.

She also said that the Perfect 10 case against the Google image search should be distinguished from this case, as in the case of Google, the user makes a click on the image before looking at it. However, the 9th judicial district was not guided by this consideration when making a decision. He used a far more sensible principle: take into account who actually stores and processes the image for demonstration to [the user].

If this decision is appealed (which will first require consideration of the case in the district court), the US District Second Court of Appeals will first need to decide what precedent to use when considering the case: the decision on the Perfect 10 case or the new decision of Judge Forrest. We hope that the decision of Judge Forrest will not be considered as a precedent for a decision. However, if this happens, it is a threat to the widespread practice of embedding materials that millions of users engage in every day.