Bloomberg Law
Dec. 2, 2021, 9:00 AM

Is Embedding Social Media Content Legal? Courts Disagree

Adam Wolek
Adam Wolek
Fox Rothschild LLP
Brieanne  Scully
Brieanne Scully
Fox Rothschild LLP

Is “embedding” an image from a social media post copyright infringement? Federal courts are split, and recent rulings found that embedding social media posts on third-party websites could be copyright infringement.

These new rulings mark a radical shift from prior decisions within the U.S. Court of Appeals for the Ninth Circuit, and show a New York district court trend to abandon the Ninth Circuit’s “server test.” The copyright implications of social media embedding are finally unfolding; some cases are only weeks old and mark a clear conflict among the courts.

Whichever court prevails as this law unfolds, it will change the course of social media use going forward.

What Is Embedding Social Media Content?

Embedding is a type of linking that allows a social media image to appear directly on another website, which has been commonly used by digital media sites for years. Rather than obtain permission directly from the content creators, digital media sites typically relied on the platform’s terms and policies for using the content posted there.

But federal courts in California and New York have taken radically different views on whether such embedding is infringement. California courts and the Ninth Circuit have permitted embedding when the sharer did not save “a copy” of the image on its system or directly transmit the image to users, while New York courts reject that approach—considering embedding as a loophole and an end-around copyright law.

The U.S. District Court for the Southern District of New York stated the Ninth Circuit misinterpreted the law, and that when third parties embed an image or video, they are still “displaying” it. And displays of works are still protected by copyright law.

Considering the divisive views from those courts in the Second and Ninth Circuits—arguably the most influential on social media laws—users may heed caution to solely rely on the terms and policies of platforms to embed posts from other users.

The ‘Server Test’

Historically, courts used the ‘server test’ to assess if a company embedded an image on its servers or directly transmitted the image users. Because copyright law required the image to be fixed in a tangible medium, the courts looked at whether the image was saved or downloaded on the publisher’s server or computer before redistribution.

Modern embedded coding does not store or copy the image on the publisher’s server but tells the user’s browser how to download the image directly from the platform, like Instagram, Facebook, or Twitter. In other words, it is “a pointer directing a user to a source of information.”

Courts then relied on the server test to hold that digital media websites were not liable for direct copyright infringement because there was no distribution of the image to users.

For instance, the test was applied in Perfect 10 Inc. v. Amazon Inc., where Google and Amazon used photographs of models from other sites using embeds, which they argued was not direct copying or distribution. The Ninth Circuit found that because the images on third-party websites were not saved on Google’s site, but only linked to their actual sources, they were not “copies” and so, not infringing. The Ninth Circuit thus only focuses on the copying itself, while ignoring the copyright holder’s display rights.

The Southern District of New York court has recently rejected this reasoning. The court stated that the Copyright Act is “technology-neutral,” and what matters is “not with how a work is shown, but that a work is shown."The courts determined that the “server rule is contrary to the test and legislative history of the Copyright Act.” Notably, the Copyright Act, did not contemplate software or the internet when it was enacted.

Other New York cases also questioned the Ninth Circuit’s ‘server test’ by stating that “possessing a copy of an infringing image” is not “a prerequisite to displaying it,” and that copyright infringement “should not hinge on invisible, technical processes imperceptible to the viewer.”

Essentially, the Southern District of New York courts have stated that no matter how the photograph got there, showing a protected photo on a website violated a copyright owner’s exclusive right to display their work. They state that technological distinctions on how the work is displayed contradicts the wide protection the Copyright Act affords.

Some decisions have even stated that while social media sites “clearly foresee the possibility of entities…using web embeds to share other users’ content, none of them expressly grants a sublicense to those who embed publicly posted content.” The courts rejected motions to dismiss for fair use, stating that sharing such content is not a transformative use.

The California courts have noted the New York trend. The U.S. District Court for the Northern District of California has even stated that unlike “the Southern District of New York, this Court is not free to ignore Ninth Circuit precedent.”

So, for now, California courts still follow the Ninth Circuit’s ‘server test’ and dismiss claims that social media companies contributorily infringe copyrights for their embedding technology.

Use Caution

After these mixed decisions, even the social media platforms warned their users of the risks of their embedding technology, encouraging them to seek permission directly from the content creators.

New York federal district courts are not following the server test and cases there have not yet reached the U.S. Court of Appeals for the Second Circuit for a clear determination. Until then, digital media websites should be cautious when embedding content on their sites.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Author Information

Adam Wolek is an intellectual property partner with Fox Rothschild LLP in Chicago.

Brieanne Scully is an associate with Fox Rothschild LLP in New York.