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

Hentaied Founder Romero 'Mr. Alien' on Fetish, Fantasy and Finding Order in Chaos

A sharp sting pierces the woman’s skin. Something foreign slips beneath the surface. Eggs, maybe. She doesn’t know it yet, but soon her body will become a vessel, a hive, a source of contamination.

AEBN Publishes Popular Searches for July, August

AEBN has published the top search terms for the months of July and August from its straight and gay theaters in all 50 states and the District of Columbia.

The Guardian Devotes Feature Article to XBIZ Amsterdam

British newspaper The Guardian sent a reporter to cover XBIZ Amsterdam earlier this month, resulting in a lengthy article about the annual European adult industry conference.

Pineapple Support Taps Char Borley as Brand Ambassador

Pineapple Support has named Char Borley as its newest brand ambassador.

Michigan Legislators Propose Online Porn Ban

Michigan lawmakers have introduced a bill that would make it illegal to distribute pornography via the internet in the state.

Florida AG Sues Aylo, Segpay Over State AV Law

Florida Attorney General James Uthmeier filed lawsuits against Aylo and Segpay on Monday with the 12th Judicial Circuit Court of Florida for noncompliance with HB3, the state's age verification law.

Colombian Court Sides with Performer Esperanza Goméz Over IG Suspensions

Colombia’s Constitutional Court last week ruled in favor of adult performer Esperanza Gómez in her legal battle against Meta over repeated suspensions of her Instagram account.

Missouri AG Announces Age Verification Rule to Take Effect Nov. 30

Newly appointed Missouri Attorney General Catherine Hanaway announced Friday that the state's recently approved age verification regulation for adult websites will go into effect on Nov. 30.

Aylo, Woodhull Freedom Foundation to Tackle Online Censorship in Virtual Seminar

Aylo and Woodhull Freedom Foundation will co-host a virtual panel addressing online censorship on Sept. 30.

Severe Sex Films Relaunches Site Through YourPaysitePartner

Severe Sex Films has relaunched its official website through YourPaysitePartner (YPP).

Show More