Online Linking Can Be Copyright Infringement, Judge Rules

A federal Judge in New York has ruled that an embedded Tweet can be a copyright infringement, rejecting the theory that copyright liability rests with the entity that hosts the infringing content, not someone who simply links to it. The Electronic Frontier Foundation calls the decision misguided, noting that the linker generally has no idea that it’s infringing, and isn’t ultimately in control of what content the server will provide when a browser contacts it. The “server test,” originally from a 2007 Ninth Circuit case called Perfect 10 v. Amazon, has been a foundation of the modern Internet. Judge Katherine Forrest rejected the server test, based in part on a surprising approach to the process of embedding. Her opinion describes the process, which is something done routinely by ordinary Internet users, as if it were a highly technical process done by “coders.” That process, she concluded, put publishers, not servers, in the drivers’ seat.