SERVER TEST

The defendants argued that the issue was settled more than 10 years ago by a court precedent known as the Server Test. This arose in a case involving an adult website called Perfect 10, whose copyrighted photos showed up in Google search results as thumbnail-size versions. Those thumbnail images had been copied and were stored on Google. If users clicked on the thumbnail link, they were taken, via an in-line link, to a third-party website where the full-size images were stored. Perfect 10's Server Test, therefore, based infringement on where the image was housed. As long as it remained housed in and could be accessed from a remote server, it was not infringement.

In the Goldman court case, however, the judge disagreed, finding the Server Test to be too limited. The court referenced the language of the Copyright Act, which does not require that one possess an image in order to display it; the language focuses on transmitting and communicating, rather than displaying. The judge's ruling pointed out that the defendants had to take several active steps in order to display the images, including navigating to Twitter, uploading the URL, drafting the code, and embedding the image. By taking those active steps, the defendants engaged in a process to violate Goldman's display right. In the words of the court, “The plain language of the Copyright Act calls for no more.”

The court also noted that in the Perfect 10 case, in order for the user to view the full-size images (as opposed to the thumbnails), he or she had to take an active step to click on the thumbnail and be taken to the remote server to view the actual image. This active step is a critical distinction in the court's view. In the Goldman case, the image is included with the text in a unified webpage, requiring no additional active step by the user.

Lastly, the court noted that since the Perfect 10 Server Test was adopted in 2007, very few courts have followed it, and none have specifically applied it to the Copyright Act's right of display. By contrast, the court cited a case in which a trademark was found to be infringed when there was a “seamless presentation” of that trademark on a website that sold CDs, even though the actual mark was displayed using an in-line linking framing device.

SCARY IMPLICATIONS

A number of commentators—note those sensationalist headlines at the beginning of this article—have expressed concern about the Goldman decision, with one, from the Electronic Frontier Foundation, going so far as to suggest that it could “threaten millions of ordinary Internet users with infringement liability” (eff.org/deeplinks/2018/02/federal-judge-says-embedding-tweet-can-be-copyright-infringement). More likely, commercial media, news, and publishing companies will need to be concerned about their liability risk for publishing images obtained from social media. They will have to “proceed with caution.” In researching this topic, I was able to locate the Goldman photo through Google Images; however, several archived news articles about the Brady- Ainge meeting no longer include the image. At least one tweet contained the message that the image was “sensitive media” and required a click to view.

The impact on librarians and online searchers is still to be gauged. There is no indication in the court's opinion that a searcher who pulls up an article containing an embedded link could be liable for the simple act of viewing the image. The court was targeting the publisher who actually did the embedding. It may become more challenging to locate specific online images as media and publishers pull back from their practice of embedding links, but as noted, I was able to locate the Goldman photo from Twitter and other sources using a Google search. Librarians and searchers should always remain cautious about using images obtained from the web in their own publications. The fact that an image is “free” on the web does not mean that it is in the public domain.

As a federal trial court decision, the reach of the Goldman case is at present fairly limited. However, it would be considered binding in the New York federal courts. Since New York is a magnet for publishing and media, its impact could be heavily felt. The Perfect 10 Server Test arose out of a federal appeals court in California, which suggests an “East Coast/West Coast Rift” that may ultimately end up in the hands of the U.S. Supreme Court. Until then, the takeaway is to link and embed carefully.