You may remember the story at the heart of this legal case: NBA Superstar Kevin Durant was a free agent before joining the Golden State Warriors. The Boston Celtics GM Danny Ainge was pulling out all stops to get Durant to head East and joint he Celtics.
Ainge had called in New England Patriot Superstar QB Tom Brady to be part of the full-court press recruiting effort. A photographer, Justin Goldman, managed to snap a photo of Ainge and Brady and posted it to his Snapchat account. The photo went viral, showing up on Twitter.
Online publications used Twitter’s embed function into news stories. The Boston Globe, Yahoo, Heavy and Breitbart were among the many that did it. So did Vox, Time, New England Spots Network, and Vox. It’s a common practice for news media to embed Facebook posts and Tweets into stories when they are newsworthy.
Here’s where it gets interesting. Goldman, with the support of Getty Images, sued the media entities claiming they had infringed on his copyright.
Similar cases in the past had been tossed out because the media hadn’t taken the photo, downloaded it and hosted it on their own site; they had merely embedded the post with the photo, something that Twitter makes easy and publicly available. But the outcome this time would be different, and could mean a spectacular change online.
Judge Katherine Forrest ruled Goldman was right and the publications violated his “exclusive display rights.” It didn’t matter, the judge said, that the publications weren’t hosting the pic and instead embedded it. Previously, the courts had applied the “server test.” If it’s not hosted on your server, you aren’t in violation.
The defendants argues that not adopting the “server test,” which has been common practice, and upheld by several other courts, would “radically change linking practices, and thereby transform the internet as we know it.”
“The Court,” Judge Forrest wrote,” does not view the results of its decision as having such dire consequently.”