Second Circuit Punts on In-Line Linking Appeal

Bryan Cave Leighton Paisner

The Second Circuit denied an interlocutory appeal in a high stakes copyright case that is being closely watched by both photographers and media companies around the country, sending key issues in the case back to the district court.  

At issue in Goldman v. Breitbart News Network, LLC is whether it is copyright infringement to “in-line link” content from one website onto another.  In-line linking places a line of HTML on a third-party site so that a webpage displays content directly from the site where the content resides. Plaintiff Justin Goldman sued nine media organizations, including Breitbart, Time, Yahoo and Heavy, for embedding a photograph he took of the New England Patriots’ Tom Brady alongside the media companies’ original articles about the quarterback actively helping the Boston Celtics recruit basketball player Kevin Durant.   

The parties do not dispute that Goldman holds the copyright to the photograph.  The issue is whether the media companies infringed on Goldman’s copyright when they embedded tweets of the image, which was originally posted by Goldman on Snapchat and subsequently went viral through Twitter and other media platforms, into articles they wrote over a two-day period about Brady’s efforts to recruit Durant.

Earlier this year, U.S. District Court Judge Katherine Forrest of the Southern District of New York denied the defendant media companies’ summary judgment motion, finding they might be held liable for copyright infringement for in-line linking.  In ruling for the plaintiff, Judge Forrest expressly rejected the Ninth Circuit’s “server test,” in which courts consider whether the HTML instructions link the image directly from the computer where the image is stored. The Ninth Circuit and other courts have found this practice does not implicate the Copyright Act because no copy of the image is stored on the intermediary’s computers.  

Judge Forrest found that the steps taken by the defendants to transmit the image via coding satisfied the Copyright Act’s requirement that an image be “displayed” by the infringer, and rejected the notion that an actual copy of the image must be made in order to constitute infringement.  She concluded that the server test “is neither appropriate to the specific facts of this case, nor, this Court believes, adequately grounded in the text of the Copyright Act.”

Given Judge Forrest’s departure from the widely accepted server test, and the uncertainty amongst media companies that the decision introduced, the media defendants immediately appealed the District Court’s order to the Second Circuit.  Although Judge Forrest certified her order for interlocutory appeal, the Second Circuit on July 17, 2018 denied the appeal. The trial court proceedings, therefore, will continue, leaving media companies in a precarious situation with respect to the ubiquitous practice of in-line linking. 

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