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A federal judge ruled that embedding a tweet of a photo of Tom Brady into a news story could constitute copyright infringement.

Artsy Editors
Feb 16, 2018 3:00PM, via Billboard

The shocking ruling seemingly upends precedent on whether linking is copyright infringement and has the potential to reshape fair use practices on the internet. The current dispute centers on a photograph of Tom Brady taken by Getty photographer Justin Goldman. The image was subsequently posted to Twitter without permission, and several media outlets including Vox Media and Breitbart embedded that tweet in their reporting. Goldman sued, arguing that the embed constitutes copyright infringement. The publishers countered that they were not hosting the infringing image, merely linking to it. In the past, courts have been guided by what is called the “server test.” Broadly, the rule holds that it is the entities that store the photograph, in this case Twitter, that are liable for the infringement. But U.S. District Court Judge Katherine Forrest found that the server test is not widely adopted, essentially setting it aside. Instead, she found the plain text and legislative history of the Copyright Act of 1976 gives weight to the display of an image, not where the image is stored, Billboard reports. The defendants could still emerge triumphant, but if they don’t, an appeal can be filed once the case is decided.

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