
Federal Judge Says Embedding a Tweet Can Be Copyright Infringement - ad_hominem
https://www.eff.org/deeplinks/2018/02/federal-judge-says-embedding-tweet-can-be-copyright-infringement
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sfifs
The ruling actually seems very reasonable. Someone took a photo and posted it
on his social media account. The platform license on those accounts presumably
allows others to share as fair use

Some for profit media companies then used the photo in their content without
licensing hiding behind a technicality of it being served from a third party
server and got stomped by the court.

Presumably if the story was an artistic criticism of the photo or described
the photo, they would have been safe under fair use.

~~~
Deregibus
The photographer didn’t post the image on Twitter, someone else who presumably
didn’t have a license to do so did. The sites then embedded that other
person’s tweet.

If it had be the photographer that posted the tweet then the media companies
would have been in the clear AFAIK since part of Twitter’s TOS allows for
embeds.

This ruling doesn’t make a ton of sense assuming the media companies were
acting in good faith. If they knew that the image was copyrighted and the
Twitter user didn’t have the rights to post the image but embedded it anyway
in an attempt To get around the copyright on a technicality then this seems
more reasonable.

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DannyBee
IAAL

In general, outside of any safe harbors, you are responsible for infringement
when you republish something, even if it was by accident.

IE if i reprint a newspaper article that fucked up and didn't clear an image,
i am also a copyright infringer[1]

The main thing that makes this not true on the web is the DMCA safe harbor for
hosting third party content (which is inapplicable in this context).

This ruling, IMHO, is completely and totally consistent with every copyright
ruling i've ever seen about republication.

[1] The circumstances in which you would have an innocent infringement defense
would be something like: you having licensed, from the newspaper, the right
the republish, and mistakenly, but reasonably, believed that they had the
right to license you the image.

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nprecup
But in this case the media companies are not the ones publishing the photo,
Twitter is. The embedded data was never produced or even passed through their
servers. It is loaded directly from Twitter.

~~~
DannyBee
So, this is basically a technical argument based on a technical implementation
detail. These mostly are considered irrelevant and frequently fail (see, e.g.,
napster et al)

It's true, fwiw, the ninth circuit did reject visual incorporation tests in
favor of a physical transmission test. This is, IMHO, silly, and only some
courts have chosen to follow it.

~~~
mcbits
It seems like more than an implementation detail to me. If Twitter receives a
DMCA notice and deletes the image, it will immediately be deleted from all of
the sites embedding it. When the publishing, distribution, and unpublishing
are entirely under someone else's control, it's really hard to justify
treating a link as infringement.

BTW I know you're talking about the way judges actually tend to interpret
these things. I'm talking about the way they would interpret things if they
had any sense.

With your ebook example, if the ebook "auto-loaded and displayed that content
for the user" then you're describing something completely different from what
happens when a site links to a tweet. It's more like if the ebook reader
parses "Encyclopedia Britannica volume B, page 38" whenever it appears in any
ebook and embeds the contents itself. If Encyclopedia Britannica is violating
someone's copyright on that page, it's just crazy to hold the ebook publisher
liable.

~~~
Deregibus
The sites aren’t linking to a tweet, they’re embedding them. There’s a
difference of intent between a plain old <a> link to a tweet’s URL, and the
full set of tags, scripts, and configuration used to embed a tweet inline with
your page. It would be unreasonable to hold you accountable for a simple link
if I had a browser plugin that automatically converted them into embeds, but
if you used the twitter markup such that they would be rendered as embeds on
any standards compliant browser that’s a different story.

~~~
mcbits
Embedding, a.k.a. hotlinking, a.k.a. transclusion is just another type of
linking. Any of those terms would work just as well in my comment because they
all share the property that the content is being published by someone else.

But there isn't much of a difference between hotlinks and anchor links in this
discussion anyway, since sites (e.g. Google, Pirate Bay) also face legal
liability for simple anchor links to copyrighted works. Just Google "[any
popular book] pdf" and read the DMCA blurb at the bottom of the results.

~~~
rayiner
But technically they’re not the same. Like, if you were to describe the DOM
nodes generated in response to a hyperlink versus an embed tag, they’d be
quite different, right?

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bo1024
(Armchair copyrighting ahead.) This case, which is apparently about
"embedding", raises some questions about the line between linking to
infringing content and hosting it.

I feel it is clear (apparently unlike the judges) that linking cannot possibly
violate copyright while hosting content without permission does.

I'm not clear technically what this article means by "embedding". I think the
interesting blurry lines are when page A contains code from page B (say as a
frame), and the code loads infringing content.

I wonder if this situation should be subject to DMCA "safe harbor" provisions,
which are what protect Twitter, YouTube, etc. from liability for user-uploaded
infringements as long as they take them down upon request.

But in general, I tend to think the responsibility should fall on page A for
content that it serves to users, even if indirectly by loading third-party
code....

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ISL
As I read the article, it sounds like a more-accurate headline would be
"Federal Judge Says Embedding an Infringing Tweet Can Be Copyright
Infringement".

~~~
djsumdog
But if you were commenting on or critiquing the photo or the narrative around
it ... wouldn't that be fair use?

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k_sh
Yikes - this is bad. Criminalizing embeds (and hyperlinks, it sounds like?) is
a swing at the jugular for the Internet.

~~~
zipwitch
Worse, it is teaching a generation (or more) that our justice system is stupid
and broken. That in turn erodes ideas like rule of law that a essential to
modern civilization.

~~~
craftyguy
> Worse, it is teaching a generation (or more) that our justice system is
> stupid and broken

Well, you wouldn't be wrong for coming to this conclusion (source: this
ruling, and more!)

> That in turn erodes ideas like rule of law that a essential to modern
> civilization.

Not necessarily. Our implementation of this is essentially flawed, but that
doesn't mean all possible implementations of rule of law are flawed as badly.
I would hope that this would inspire change, but people are inherently against
change so at the end of the day you are probably correct.

~~~
helthanatos
The only direction people really want to change in is socially. They focus all
their attention on social issues and poverty and taxes. The _actual_ laws
don't want to be touched by anyone. We have very poor and contradictory laws
and decisions with regards to new technology. The people in charge don't seem
to understand the internet and internet-related rights.

~~~
craftyguy
Yep, which is why our implementation is flawed. It allows folks who have no
knowledge of certain topics to make and enforce laws that pertain to those
topics.

~~~
ravenstine
I know the solution: Just remove government officials who use the word
"cyber".

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iakh
Somebody help me out. Neither the article nor the quoted decision provides any
rational as to how they jumped to linking would also be considered
infringement. From my reading, the argument is that the sites made a
conscience effort to display a copywritten image, tweet or not. Help me
understand why displaying the tweet that included the image should not be
infringement when displaying the image directly is.

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bobwaycott
> _... the sites made a conscience effort ..._

I believe you mean the sites made a _conscious_ effort here.

~~~
iakh
Thank you. Autocorrected

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rayiner
The EFF write-up is quite misleading. The district court does a perfectly
reasonable job of explaining the difference between a hyperlink and an embed
tag, namely that the latter results in the content integrated into the webpage
instead of taking you to a separate site. Contrary to the EFF write up,
focusing on the “coder” is not misleading. The choice to embed a tweet versus
linking to a tweet is in fact what someone writing HTML code would make.

~~~
mar77i
> The choice to embed a tweet versus linking to a tweet is in fact what
> someone writing HTML code would make.

Duh, HTML is code now?

Tell twitter to remove the feature, then.
[http://socialmarketingwriting.com/wp-
content/uploads/2013/09...](http://socialmarketingwriting.com/wp-
content/uploads/2013/09/Embed-Tweet-Code-With-Preview.jpg)

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aresant
Youtube, soundcloud, and other huge sharing platforms have all dealt with
copyright & infringement through a combination of:

1) Easy takedown process DMCA

2) Algorithmic content identification & blocking

Is there a start-up that provides similar content moderation / blocking as a
SAAS?

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rebuilder
What's the difference between a news org embedding a tweet containing a photo
vs. embedding just a photo hosted by a third party?

~~~
Buge
From a practical (not legal standpoint), the second one is has the possibility
of going down due to too much traffic, or being replaced by obscene images.

[https://www.theguardian.com/media/2015/oct/28/cartoonist-
the...](https://www.theguardian.com/media/2015/oct/28/cartoonist-the-oatmeal-
trolls-huffpo-over-images-published-sans-permission)

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Pica_soO
Definitely good for the lawyer business to turn more of society into a
warzone.

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alsadi
I was told that one can't copyright less than 3 lines.

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dbuder
How is tweeting not considered putting it into the public domain, it's open
broadcast.

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ruytlm
Because being on the receiving end of a public broadcast does not give you the
right to re-use the content. The content owner, for better or worse, typically
retains the exclusive right to use or broadcast the content, regardless of how
many times it is broadcast.

Consider older mediums; does broadcasting a TV show put it into the public
domain? Or playing a song on the radio?

~~~
mcbits
> Consider older mediums; does broadcasting a TV show put it into the public
> domain? Or playing a song on the radio?

In a sense, it does, yeah. It's just that copyright injects a century or so of
lag time before members of the public domain are allowed to exercise their
rights.

