February 23, 2018
By: Toby Butterfield
A federal court in New York ruled last week that embedding a third party’s content in a webpage can constitute copyright infringement, even though that content is not stored, copied or served by the webpage owner. The decision, by Judge Katherine Forrest, questioned the legality of “embedding,” a technical process resulting in the display of content on a webpage by retrieving the content from a third party server, and held that embedding content on a webpage constitutes the “display” of that content, a right exercisable only by, or with the permission of, the copyright owner.
The defendants in the case, including well-known media entities such as Breitbart News Network, Time, Inc. and Yahoo!, asked Judge Forrest to dismiss the case based on the long-standing “server test,” which limits liability for displaying infringing content to those who actually serve such content. The judge denied that request, ruling instead that liability can extend to anyone who displays infringing content, even where the content actually resides on another’s website. Other issues, including fair use, remain undecided in the case.
If you have any questions about the Goldman decision, or about other legal issues involving copyright and the Internet, contact Toby Butterfield on (212) 554-7860 or tbutterfield@MosesSinger.com or any other member of the Moses & Singer IP practice.
Mr. Butterfield represented the Association of Magazine Media, New Media Alliance, Electronic Frontier Foundation and Public Knowledge as amici curiae in a related case brought by Mr. Goldman against other media defendants.