Twitters Beware: The Display and Performance Rights.

Author:Lian, Jie
  1. INTRODUCTION II. CONTROVERSY OF EMBEDDING IN COPYRIGHT LAW A. Essential Role of Embedding in Internet B. Liability of Embedding in U.S. Copyright Law 1. Reproduction, Derivative Work, and Distribution Rights 2. Display and Performance Rights 3. Legal Challenges to the "Server Test" 4. Secondary Liability of Embedding C. Liability of Embedding in the European Union III. AFFIRMATIVE DEFENSES FOR EMBEDDED COPYRIGHTED CONTENT A. Exempting Legitimate Embedding From Copyright Liability B. Alternative Defenses for Legitimate Embedding 1. The Fair Use Doctrine 2. The DMCA Safe Harbor 3. The Implied License Doctrine IV. PROPOSAL OF STATUTORY EXEMPTION FOR LEGITIMATE EMBEDDING A. Using an Opt-Out Scheme to Protect Legitimate Embedding B. Preventing Illegitimate Embedding Through Knowledge Element V. CONCLUSION 21 YALE J.L. & TECH. 227 (2019)


    In a controversial decision in Goldman v. Breitbart, Judge Forrest from the U.S. District Court for the Southern District of New York ruled that, by embedding a tweet containing a copyrighted photograph in a webpage, defendants violated the copyright owner's exclusive display right (1) Because of the ubiquity of website embedding, Judge Forrest's decision, if it stands and is adopted by other courts, could have significant implications on online publications. (2)

    In reaching its decision, the Goldman court rejected the "server test," which was first established over a decade ago in Perfect 10 v. Google. (3) There, the copyright owner Perfect 10 sued Google for copyright infringement, alleging, inter alia, that Google infringed its exclusive display right by framing in-line linked full-size images of copyrighted photographs in Google Image search results that appear on a user's computer screen. (4) Adopting the "server test," the district court for the Central District of California held that Perfect 10's display right was implicated only if Google hosted and physically transmitted the copyrighted content itself. (5) Because those in-line linked images were stored on and served by third-party websites, the district court ruled that Google did not directly infringe Perfect 10's display right. (6) On appeal, the Ninth Circuit agreed that "the server test ... comports with the language of the Copyright Act." (7) Accordingly, the Ninth Circuit upheld the district court's decision that Google's in-line links "[did] not constitute direct infringement of the copyright owner's display rights." (8) Since then, several U.S. courts have adopted the "server test." (9) The same principle is also applicable to the performance right, which is corollary to the display right. (10) For example, according to the "server test," embedding third-party video would not directly infringe the copyright owner's performance right. (11)

    Because the "server test" is easy to understand and administer, it has become a de facto bright line rule on which many Internet actors rely. (12) Thus, the Goldman court's rejection of the "server test" creates significant legal uncertainty for the practice of in-line linking or embedding. (13) While copyright owners may prefer the abrogation of the "server test" because it expands the scope of direct infringement, the legal uncertainty created by Goldman can be detrimental to Internet platforms. (14) Near the end of her court opinion, Judge Forrest dismissed the dire prophecies that the effects of her ruling would "cause a tremendous chilling effect on the core functionality of the web," noting that a myriad of defenses are available to protect legitimate embedding. (15) This Note argues, however, that none of the existing defense mechanisms provides adequate legal protection for the vast online community. (16) Accordingly, this Note advocates for the enactment of a statutory exemption to protect legitimate embedding in the realm of the Internet. (17)

    Part II of this Note examines the controversy of embedding in copyright law. This section begins with an articulation of the essential role of embedding in the Internet, followed by a review of the judicial development of the "server test." Next, it provides a detailed analysis of various legal challenges to the "server test." Through the lens of statutory interpretation, this Note finds that both the statute and the legislative history support broad interpretation of the display and performance rights, whereas the "server test" has a weak legal footing. This section also discusses the legal theory of secondary liability for embedding, and presents comparative law perspectives on embedding outside the U.S. Part III begins by explaining the needs and rationales for exempting legitimate embedding from copyright liabilities. Then, using the Goldman case as an example, the next section analyzes several alternative defenses to protect legitimate embedding from alleged infringement of the display or performance rights, including the fair use doctrine, the Digital Millennium Copyright Act (DMCA) safe harbor, and the implied license doctrine, as alternatives to the "server test." This Note argues, however, that none of the existing defense mechanisms is adequate to protect legitimate embedding due to their intrinsic limitations. Finally, this Note concludes with a proposal for a statutory exemption for legitimate embedding, which promises to provide a pragmatic solution in delineating the boundary separating reasonable from unreasonable website embedding.

  3. Controversy of Embedding in Copyright Law

    Throughout its history, copyright law has struggled to keep pace with technological developments. (18) Although "[t]he need to adapt to new technologies remains the primary impetus for copyright revision, ... [t]echnology-neutral provisions have failed to future-proof copyright law, leading to numerous quickly outmoded revisions." (19) Historically, copyright owners have a love-hate relationship with technology. (20) On one hand, technology can benefit copyright owners by providing new mediums of expression and new types of authorship, expanding modes of reproduction and dissemination, and creating new markets for commercializing copyrighted works. (21) On the other hand, technology can undermine copyright incentives by supplanting existing markets for copyrighted works and facilitating copyright infringement. (22) Such dynamics create a fertile ground for copyright conflicts. (23) The Internet represents a paradigm-shifting technology that started the digital revolution. (24) Not surprisingly, the emergence of the Internet has been accompanied by many new copyright conflicts that were unseen in the pre-Internet era, one of which concerns embedding.

    1. Essential Role of Embedding in Internet

      In the Internet domain, embedding, or in-line linking, refers to a special type of linking that enables a webpage to make remote content appear as an integral part of its own content. (25) Before discussing the controversies about embedding, a brief overview of the linking technique is helpful.

      A webpage includes instructions written in Hypertext Markup Language ("HTML"), which supports the use of links to connect to another webpage or source, such as a document, image, video or sound clip. (26) The operation of linking follows the Hypertext Transfer Protocol ("HTTP"), which was first introduced in 1991 for the emerging World Wide Web. (27) In essence, the HTTP is a request response communication protocol that governs information exchange between servers and clients: a client sends a request message to a server; and the server, in turn, returns a response message to the client. 28 In practice, most users interact with hyperlinks, which might be a highlighted word or phrase, or an icon that "conceals" the Internet address ("URL") of a linked-to site. (29)

      Links can take different forms. Simple links take the user to a website's home page where the user may navigate to specific works. (30) Deep links bring the user directly to an internal page of a website located at a lower level from the home page, thereby circumventing the home page and any other intervening pages. (31) Embedded or in-line links, as noted above, direct a user's browser to display the remote content, which may be accessed with or without the user selecting the link. (32) A special type of in-line linking is framing, which enables "the operator of a website to divide a browser window into multiple, independently scrollable frames with different layouts, and to place separate documents, from different Internet sources, into each window." (33)

      Linking is the core technique for navigating the Internet, which derives "much of its value from its ability to link related documents." (34) In fact, the link has become a "symbol of the technology it facilitates" because it has come to embody the "decentralization, speed, interactivity, universality, and access that is the Internet." (35) Embedding is essential to the Internet: it helps to save valuable digital space on the server hosting the linking websites because those embedded elements are stored in servers belonging to third parties. (36) As such, embedding has become one of the most ubiquitous features of the Internet as it is routinely used nowadays in Internet searches, blogs, news, articles, and social media. (37)

      However, as the Goldman court suggests, embedding of copyrighted content may incur liabilities.

    2. Liability of Embedding in U.S. Copyright Law

      "The Internet was designed to be an open system." (38) Since its inception in the late 1960s as part of the Department of Defense's ARPANET project, (39) the Internet has adopted an "open architecture" network which invites all to join. (40) In practice, much of the Internet operates as an opt-out system: users can browse websites freely by default, unless website owners take affirmative steps to block access. (41) Enforcement of the Internet opt-out mechanism generally relies on technological measures and community norms. (42) For example, technological...

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