Embedding a Tweet Can Be Infringement, Court Says

Embedding a Tweet Can Be Infringement, Court Says

NEW YORK — To the consternation of many individuals and organizations that have embedded pictures and other content on social media platforms, a New York federal judge last week ruled that users can be held liable for copyright infringement if they embed a tweet posted by a third party.

The decision has been criticized by numerous observers in the case, including Above the Law’s Joe Patrice, who called the decision “just awful.”

“And it’s not even that it’s necessarily wrong … just awful,” Patrice wrote.

The ruling stems from a case initiated by Justin Goldman, who accused online publications — including Breitbart, Time, Yahoo, Vox Media and the Boston Globe — of copyright infringement for publishing articles that linked to a photo of NFL star Tom Brady.

In 2018, it is quite common for news sites to embed content posted by third parties, from videos to tweets.

But U.S. District Court Judge Katherine Forrest ruled last week that while those sites don’t host the content themselves, they can be held liable for copyright infringement.

The news sites, in their defense in the case, argued that they couldn’t be found liable for copyright infringement because content wasn’t hosted on their servers. Federal courts have long held that copyright liability rests with the entity that hosts the infringing content — not someone who simply links to it.

The defendants offered up the so-called “server test,” which stemmed from the 2007 9th U.S. Circuit Court of Appeals case involving the adult entertainment brand Perfect 10, which sued Amazon for infringement.

For years, the server test adopted in the adult entertainment company’s case against the online retailer has provided a clear, almost bright-line, rule.

But Forrest rejected the “server test” argument and ruled that the news organizations are liable.

“[W]hen defendants caused the embedded tweets to appear on their websites, their actions violated plaintiff’s exclusive display right; 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,” Forrest wrote.

Forrest argued that the server test was established in the Perfect 10 v. Amazon Inc. case, which dealt with the “distribution” of content and not “displaying” infringing work.

But for those thinking the ruling has changed the playing field for passing around unauthorized content, think again. Perhaps it didn’t.

“The cries that ‘the sky is falling’ are foolish,” said industry attorney Marc Randazza of Randazza Legal Group. The decision “has not changed much.”   

“Essentially, the [ruling] says that if you steal someone else's image, but you do it by using web-browser magic to simply 'embed' the image, then you are still committing copyright infringement by displaying someone else's work without permission,” Randazza told XBIZ. “That's how copyright has always worked.  

“But, any decisions that make it harder to steal are always met with shrieks of apoplexy by the thieves.”

Forrest’s ruling doesn’t mean the publishers have lost the suit — it simply rejects the news sites’ motion for summary judgment.

Meanwhile the Electronic Frontier Foundation has publicly said that Forrest’s ruling shouldn’t stand.

EFF staffer Daniel Nazer noted the server test is “a foundation of the modern internet.”

If the ruling stands, he said, it “would threaten the ubiquitous practice of in-line linking that benefits millions of internet users every day.”

Related:  

Copyright © 2025 Adnet Media. All Rights Reserved. XBIZ is a trademark of Adnet Media.
Reproduction in whole or in part in any form or medium without express written permission is prohibited.

More News

2025 XBIZ Amsterdam Website Launches With Call for Speakers

XBIZ is pleased to announce that the website for its annual European conference, XBIZ Amsterdam, is now live.

NC Governor Vetoes Bill Targeting Adult, Could Face Override

North Carolina Governor Josh Stein today vetoed a bill imposing new regulations that adult industry observers have warned could push adult websites and platforms to ban most adult creators and content.

25,000 Sign Petition to Legalize Pornography in Ukraine

An OnlyFans model’s petition to decriminalize pornography in Ukraine has amassed the 25,000 signatures required for official consideration by President Volodymyr Zelensky.

WannaCollab Joins Pineapple Support as Supporter-Level Sponsor

WannaCollab has joined the ranks of over 70 adult businesses and organizations committing funds and resources to Pineapple Support.

FSC Unpacks SCOTUS Age Verification Ruling in Webinar

The Free Speech Coalition conducted a public webinar Tuesday to help adult industry stakeholders understand the Supreme Court’s recent decision in FSC v. Paxton, and its potential implications.

UK Lawmaker Calls for Appointment of 'Porn Minister'

Baroness Gabrielle Bertin, the Conservative member of Parliament who recently convened a new anti-pornography task force, is calling for the appointment of a “minister for porn,” according to British news outlet The Guardian.

FSC Toasts Jeffrey Douglas for 30 Years of Service

n the very same evening when the adult industry was hit hard by the Supreme Court ruling supporting Texas’ controversial age verification law, HB 1181, members of the Free Speech Coalition board, staff and supporters gathered to celebrate Jeffrey Douglas’ 30 years as board chair — a fitting reflection of his reputation as an eternal optimist.

TTS Opens UK Testing Location

Talent Testing Service (TTS) has opened a new U.K. location in Ware, Hertfordshire.

FSC: Age-Verification Laws Go Into Effect in South Dakota, Georgia, Wyoming on July 1

The Free Speech Coalition (FSC) has published a statement regarding new age verification laws set to go into effect tomorrow in South Dakota, Georgia, and Wyoming.

FSC Responds to Supreme Court Decision on Texas AV Law

The Free Speech Coalition (FSC) has released a statement responding to last week's Supreme Court decision on FSC v. Paxton, the Texas age verification law.

Show More