Online Copyright enforcement

A few months ago, a federal district court in New York held that several publishers violated a photographer’s copyright when they embedded a photograph from one of the photographer’s Twitter posts. Goldman v. Breitbart News Network, No. 17-CV-3144 (KBF) (S.D.N.Y. Feb. 15, 2018). The photographer, Justin Goldman, had sued Breitbart News Network, TIME Inc., The Boston Globe and other online publishers last year for copyright infringement, alleging they displayed in various online news stories, without permission, a photograph he took of New England Patriots quarterback Tom Brady, which he had posted on Twitter.

In their defense, the publishers invoked the “Server Test,” based on the prominent Ninth Circuit decision, Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007), which held that the unauthorized display of Google Image search engine results, of photographs stored on third-party servers, did not constitute copyright infringement, provided that such images were not hosted on Google’s servers. Essentially, the Server Test provides that website publishers are not liable for copyright infringement if they embed content hosted on third-party servers, but not their own servers.

But in the Goldman case, the New York court (under the jurisdiction of the Second Circuit), questioned the validity of the Ninth Circuit rule, because the court concluded that the Copyright Act does not require physical possession of the copyrighted material. The court relied on Supreme Court precedent supporting that merely transmitting copyrighted material can constitute infringement, regardless of “invisible” technical distinctions regarding the means of the infringing display or distribution, see American Broadcasting Co.s, Inc. v. Aereo, Inc., 134 S. Ct. 2498 (2014). Therefore, the court declined to apply the Server Test, and concluded that the publisher defendants “violated plaintiff’s exclusive display right [and] the fact that the image was hosted on a server owned and operated by an unrelated third party (Twitter) does not shield them from this result.”

Furthermore, the court emphasized a “critical” distinction with Perfect 10 regarding the “paramount” role of the user. The web users in Perfect 10 were required to click on the thumbnail images in the Google Image search, in order to see the full-size images hosted on third-party servers. By contrast, in the Goldman case, visitors to the defendants’ websites would immediately see the full-size image, without any volitional act of clicking to connect to a third-party server.

On March 19, the district court granted the publisher defendants’ motion to certify the decision for interlocutory appeal to the Second Circuit, acknowledging the parties’ representations that the decision created “uncertainty for online publishers” with a significant “impact beyond this case” due to the popularity of Twitter and “retweeting.” Some commentators, such as the Electronic Frontier Foundation, suggest that the Goldman decision threatens in-line linking and, if followed by other courts, could require monumental changes to online news publishing. One amicus brief in the New York case also predicted that the Goldman ruling will “transform the internet as we know it.” While some of these gloomy predictions may be overstated based on a single district court decision, the appeal to the Second Circuit will certainly be closely watched, so stay tuned for updates.

 

Debbie Laskey, MBA

Have you ever spent hours working on a document for work? That’s a silly question because most of us who recognize Microsoft software and SlideShare have spent countless hours working on executive briefs, lengthy project reports, presentation decks, and much, much more.

Normally, we give our work product to our supervisors or give our presentation to our teams and then move on to the next project. But on that rare occasion when someone suggests, “Why don’t you put that document online,” there may be severe ramifications that must be considered.

For those who call the legal profession home, the theme of this post will come as no surprise, but for others who are not lawyers, paralegals, or other legal support staff, it’s hard to know where the line is drawn when it comes to the enforcement of online copyright infringement.

Allow me to share a recent incident. While I receive regular Google Alerts and Talkwalker Alerts via email for my name, every so often, I conduct a Google search featuring my full name. While my name is not as common as John or Jane Smith, odd as it may seem, there are still other Debbie Laskey’s in the world.

However, since I am a guest blogger for 10 blogs and have an extensive digital footprint with profiles on LinkedIn, Twitter, Facebook, Google Plus, YouTube, Flickr, Instagram, SlideShare, About.me, Quora, and others, this recent Google search yielded many pages of content that appropriately related to me. In fact, the first 10 pages of content correctly referred to me and my work.

But then something odd turned up in the Google search: There was an appearance of one of my presentations that I had posted to SlideShare (entitled Social Media Marketing 101), and it appeared on an unknown website. The entire document was mine – nothing had been changed. But my document was on someone else’s site, a site that promoted itself as “the premier online destination to start and grow small businesses.” The site further explained that it housed over 20 million documents. But, there had been no request for featuring my document. There had been no communication whatsoever from the site owner. And there was no link back to any of my websites.

This copyright infringement caused me great concern. I looked around the website for contact information and to see if there were any FAQs that addressed this issue. I found an email address and sent a request to immediately remove my document. A few days later, I received an email with a form to complete. “This form and reporting copyright infringement is to be used for purposes of requesting the removal of copyrighted content only because the person who posted it did not have the right to post the material.” Either the website posted my document or someone else submitted it – but in either case, I wanted it removed.

A few days later, I received another email indicating that my document had been removed from the website. But this entire experience has raised an important issue in our social era. How can we protect our digital assets? How can we protect our profile names, our digital designs and logos, our work product, etc.?

The reality is that, since there is so much information being added to the Internet every second, no one can really monitor every single appearance of our personal brands and corporate brands. Therefore, the best rule of thumb is, don’t place data online that would severely impact your brand or your business. Don’t place confidential data at risk. Don’t place logos or photos that are not approved for widespread use or specifically for media use. Don’t place videos on your site featuring your C-Suite leaders in interviews saying questionable things.

The Internet is a resource for doing business smarter and reaching existing and prospective customers, but don’t let it negatively impact your business by allowing your corporate brand assets to be infringed upon.