3 Count: Embedded Troubles

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1: Appeals Court Won’t Take Up Copyright Decision That Raised Alarm About Embedding, Linking

First off today, Eriq Gardner at The Hollywood Reporter Esquire reports that the Second Circuit Court of Appeals has denied an immediate appeal in a case involving embedded photos of NFL quarterback Tom Brady.

The case pitted photographer Justin Goldman against a variety of news organizations. According to Goldman, in 2016 he took a photo Tom Brady that was shared without his permission by many users on Twitter. The news agencies, taking advantage of Twitter’s “embed” feature, put the image on their websites. Goldman sued alleging copyright infringement the defendants argued that they had not displayed the photos themselves, instead they had merely embedded the tweet. To bolster these claims, they cited the Perfect 10 v Google case, which created the “server test” after it found that Google had not infringed Perfect 10 by embedding full-sized images into Google Image Search.

However, the District Court judge disagreed with that ruling, saying that the plain language of the law does not support the “server test” and news organizations could be held liable when they embed images without permission on their site. The Second Circuit Court of Appeals has declined to hear an interlocutory appeal, saying it is “unwarranted”. Most of the defendants in the case have already settled though Heavy.com has refused to do so.

2: Publishing Tech Specs May be Fair Use, Says Appeals Court

Next up today, Thomas Claburn at The Register reports that the US Court of Appeals for the District of Columbia Circuit has overturned a lower court ruling, saying that the publication of technical specifications may be a fair use.

The case pits the National Fire Protection Association (NFPA) against Public.Resource.org (PRO). PRO published technical standards drafted and owned by the NFPA that were incorporated into the National Electric Code. NFPA sued, along with several other organizations with similar complaints, claiming copyright infringement. The lower court agreed, granting a summary judgment in favor of the NFPA.

However the Appeals Court has overturned that judgment, saying that fair use may, but not necessarily will, provide a defense for some or even all of PRO’s actions. The case now goes down to the lower court where those fair use issues will be looked at more closely.

3: Netflix and Amazon Prime Streaming Overtakes Satellite and Cable TV in Landmark Shift

Finally today, Anthony Cuthbertson at The Independent reports that, in the UK, streaming services such as Netflix and Amazon Prime has passed traditional cable and satellite TV in the number of homes reached for the first time in history.

The news comes from Ofcom, the nation’s media regulator, which released its first Media Nations report. According to that report, the growth in streaming services is being driven by original content, with 38 percent of Netflix subscribers saying that original programming was a driving force in their decision to subscribe.

The news comes after both cable and satellite providers invested significant resources in trying to stem the tide. The data, however, does not account for users accessing content from pirate sources. Most believe that, if piracy is factored in, streaming overtook traditional television a long time ago.


That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

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