Goldman v. Breitbart News Network, LLC
302 F. Supp. 3d 585
S.D. Ill.2018Background
- Justin Goldman (plaintiff) took and copyrighted a candid photograph of Tom Brady; he posted it to Snapchat and it later was uploaded to Twitter by third parties.
- Defendants are online news sites that published articles about Brady and the Celtics and made the Photo visible on their webpages by embedding Tweets that hosted the Photo on Twitter's servers; defendants did not copy the Photo onto their own servers.
- Plaintiff sued for direct copyright infringement under 17 U.S.C. § 106(5), asserting defendants violated his exclusive public display right by causing the embedded Tweets (and thus the Photo) to appear on their sites.
- The parties agreed to bifurcate the litigation; this phase addressed whether embedding a Tweet can constitute a violation of the display right; other issues (liability of particular defendants, defenses) were reserved.
- Defendants moved for partial summary judgment asserting the "Server Test" (no display when image is hosted on a third‑party server) should govern; plaintiff argued embedding can give rise to display liability and that the Server Test is inapplicable.
- The Court denied defendants' motion and granted partial summary judgment to plaintiff, holding that embedding the Tweets to display the Photo on defendants' sites violated the display right even though the image resided on Twitter's servers.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether embedding a Tweet that displays a copyrighted image hosted on a third‑party server infringes the § 106(5) public display right | Embedding is an active process by which a website transmits/causes a transmission of the image to the public; physical possession or hosting is not required | The Server Test controls: direct display liability requires the image to be stored on the publisher's server; embedding merely provides instructions to a third party and is not a display by the publisher | The Court held embedding can violate § 106(5); where defendants embed and thereby cause the image to be displayed to their audience, they infringed the display right despite the image being hosted on Twitter |
| Whether the Ninth Circuit's Perfect 10 server‑location rule dictates the outcome | Server Test would devastate licensing markets and is inconsistent with the Act's text and purpose; distinctions from search engines matter (no user volition here) | Perfect 10 establishes that inline linking/embedding that serves images from third‑party servers does not constitute a direct display by the linking site | The Court declined to apply Perfect 10's Server Test here, finding it inapt and not compelled by the Copyright Act or controlling precedents (and distinguishing Perfect 10 on facts) |
| Relevance of Aereo and technological formalisms | Aereo supports looking past technical distinctions invisible to users; curatorial choice/volition by the publisher matters | Defendants argued technical distinctions (server location, user action) should determine liability | The Court relied on Aereo's principle that invisible technical differences should not determine liability and emphasized defendants' affirmative steps to embed and select content |
| Whether holding defendants liable would unduly chill web functionality | Plaintiff acknowledged potential defenses (public release, license, fair use, DMCA) and argued those defenses limit any overbreadth; law should protect creators' display rights | Defendants and amici warned the decision would chill embedding/linking and disrupt internet practices | The Court rejected a sweeping chilling‑effect argument, noting available defenses and factual issues remain; it limited the holding to the embedding facts presented |
Key Cases Cited
- Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984) (technology changes inform copyright scope)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment burdens and standards)
- American Broadcasting Cos., Inc. v. Aereo, Inc., 134 S. Ct. 2498 (2014) (look past technical distinctions invisible to users when assessing transmit/display liability)
- Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) (adopted a server‑location rule for direct display liability in the context of image search)
- Flava Works, Inc. v. Gunter, 689 F.3d 754 (7th Cir. 2012) (addressed embedding and contributory liability; distinguished search‑engine facts)