Column Editor: Bruce Strauch (The Citadel, Emeritus)
Justin Goldman v. Breitbart News, Heavy Inc., Time, Inc. Yahoo, Inc. Vox Media Inc., Gannett Company, Inc. and about everyone else you could think of. United States District Court. Southern District of New York. 17-cv-3144 (KBF), Feb. 15, 2018.
Justin Goldman snapped a photo of Tom Brady and friends (not Gisele) on the street in the Hamptons and uploaded it to Snapchat Story. It went viral, which is to say every whichaway including Twitter.
The defendants are all news outlets and blogs that “embedded” the photo in articles.
There is no dispute that Goldman owns copyright.
So what is embedding?
Defendants did not copy or save the photo on their computers. An HTML code instructs on arrangement of a webpage allowing for placement of images including photos. The code can embed an image retrieved from a third party server. Text and images are seamlessly integrated even though images may be hosted elsewhere.
Facebook, Twitter, YouTube — indeed all social media sites provide the code that permit this lifting and embedding of images.
There was no dispute as to the facts, so this was ripe to be decided by a judge as a matter of law. And to do that, we go to the Copyright Act of 1976 to see how it responds to changes in technology.
Here we find the Act gives the owner the exclusive right to “display” the work publicly “either directly or by means of a film, slide, television image, or any other device or process.” 17 U.S.C. § 101.
“Device or process” is defined as “one now known or later developed.” Id.
So, yes, you could stop reading right here. But the law is famous for its over-kill. So indulge.
The drafters of the 1976 Amendments in their House Report stated much of the impetus for change was driven by new industries and new methods of reproduction. Congress did “not intend to freeze the scope of copyrightable subject matter at the present stage of communications technology.” H.R. Rep. 94-1476, 47, 51 (1976).
Congress intended the display right to include “[e]ach and every method by which the images… comprising a… display are picked up and conveyed.” Id.
It went on to jabber about electronic transmission using a “cathode ray tube or similar viewing apparatus connected with any sort of information and retrieval system.” Id.
And in that ancient year of 1976 they marvelled at a future world where libraries would one day access single copies of works by electronic transmission.
A (not so) Recent Case
In 2014, the Supreme Court looked at novel technologies in American Broadcasting Cos., Inc. v. Aereo, Inc., 134 S. Ct. 2498 (2014). Aereo sold subscribers a technologically complex service that enabled them to watch TV programs over the Internet near the same time as they were broadcast over the air.
Aereo didn’t copy or store anything. When a show was selected, Aereo’s servers selected an antenna, tuned to the on-the-air broadcast, and transmitted it to the viewer.
Aereo argued that the viewers chose the program, and the technology provided their choice. The user was “transmitting” the performance. The user was making the infringing copy.
The Court said, no, it was the same as cable technology which the Act addressed. Things lurking behind the screen invisible to the viewer created a “copy shop that provides its patrons with a library card.” Id. At 2507.
Although on that basis, the dissent (Scalia, J.) says it’s the buyer doing it, not the copier machine manufacturer.
Which raises vital questions.
Isn’t “copy shop” paired with “library card” a mixed metaphor?
Is this just a finesse to let the copyright owner get at one big defendant rather than having to sue a legion of home viewers?
Shouldn’t you have stopped reading where I told you up above?