Embedding Online Content? Beware!
While the use of “embedded” content online is ubiquitous, the legality of this practice is being seriously challenged.
Copyright law generally prohibits the public display or distribution of copyrighted works without the copyright owner’s authorization. However, the advent of the internet and the desire of some courts not to impede its development have led to tortured interpretations of the copyright laws. One such interpretation of the law concerns the use of “embedded,” “framed,” or “hotlinked” content on a webpage; i.e., instead of a webpage containing an actual copy of certain content (e.g., a video or image), it instead contains code that hyperlinks content hosted on another website and causes that content to automatically appear on the user’s screen. (This is distinguished from a simple hyperlink, where the content is not displayed and an interested user is then redirected to the original source when it clicks the link.)
Under the “server rule” adopted by the Ninth Circuit over a decade ago in Perfect 10 v. Amazon, the owner of a website that does not itself store and serve certain content to a user is considered not to be “displaying” or “distributing” that content, even if the website causes the content appears on a visitor’s screen through the use of embedding or framing code. In other words, the “server rule” holds that while a website that physically stores and displays an unauthorized copy of protected material such as an image may violate the copyright owner’s exclusive rights of reproduction, distribution, and public display, a website that uses embedding or framing code to achieve the exact same result does not.
Especially with the rise of social media platforms that facilitate and encourage the distribution of embedded content, and the fact that so much content today resides “in the cloud,” the “server rule” has facilitated the widespread piracy of copyrighted material, and this has helped drive the growth and profitability of many social media platforms. For instance, assume an unauthorized copy of a copyrighted image is hosted on a website, and social media platform users begin sharing that image via the embed feature of those apps. What can the copyright owner do? Under the “server rule,” neither the users nor the platforms have committed copyright infringement, as none of them are “serving” the image. The copyright owner’s legal remedies against the initial website are likely illusory (and effectively nonexistent if the website is located outside the country). Even if the platforms can be persuaded to block further distribution of the pirated content, that may be only after the image has propagated across the internet and destroyed any market value it may have had.
While many courts have slavishly followed the “server rule” after the Perfect 10 decision (and it remains binding precedent in California, Washington, and the rest of the Ninth Circuit), it has been severely criticized. For instance, leading copyright scholar and Columbia Law professor Jane Ginsburg has assailed it as an “Internet-only” interpretation of copyright law that has effectively destroyed the market for many copyright owners, particularly photographers. Perhaps encouraged by scholarly critiques like this, an increasing number of courts are taking a fresh look at the “server rule,” and, seeing its logical flaws and inconsistency with the terms of the Copyright Act, are refusing to follow it.
A recent case in the Southern District of New York typifies this changing attitude. Nicklen v. Sinclair Broadcast Group involved a photographer/filmmaker who posted one of his nature videos to his Instagram and Facebook accounts, and included a caption directing those seeking to use the video for commercial purposes to contact his agent. Sinclair Broadcaster Group (which owns over 200 local television stations) later published an article about the video. Sinclair never sought or obtained any license to use the video, but it nevertheless appeared in the body of the article via embed codes to Nicklen’s original posts. This article (with the embedded video) was then re-embedded on all the various local Sinclair television station websites. After Nicklen sued, Sinclair moved to dismiss, arguing that under the “server rule,” it had not committed copyright infringement, because all it did was embed content from Nicklen’s own post. The court disagreed, citing with approval Prof. Ginsburg’s criticisms of the rule, and noting that under Sinclair’s application of the server rule, an author who posts any material to social media “surrenders control over how, when, and by whom their work is subsequently shown – reducing the display right, effectively, to the limited right of first publication that the Copyright Act of 1976 rejects.” The court held that simply was not the law.
Time will tell whether circuits will similarly reject the Ninth Circuit’s “server test,” and whether the Ninth Circuit itself will reconsider this doctrine. However, users of embedded content online should be aware that the popular wisdom that “it’s OK as long as you use an embed link” may not protect them in a copyright infringement lawsuit.
