Federal Judge Says Embedding a Tweet Can Be Copyright Infringement | Hacker News Reader

Federal Judge Says Embedding a Tweet Can Be Copyright Infringement

eff.org

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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.

17 U.S.C. § 107

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

Reporting isn't automatically fair use, it's an example of a purpose which can be fair use depending on the fair use factors. And fair use is a defense, which only applies if a use is otherwise infringing.

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.

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.

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.

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.

> 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)

"Details are irrelevant" is the argument you get from people who don't want to consider the implications of the details.

> I could simply avoid all liability by setting up a server/separate legal entity in a country with no copyright laws, place all images there, and then i've never published anything at all by your argument.

Is this not exactly the sort of thing companies do on a regular basis to avoid, for example, taxes? Or minimum wage laws or a hundred other things like that? If there is a jurisdiction where it's legal then it's legal to do it in that jurisdiction, no?

> Similarly, if i wrote a book, and on page 34 it said "for the text and images on this page, please see Encyclopedia Brittanica volume B, page 38", the law would probably be okay with that. If i had an electronic book that auto-loaded and displayed that content for the user, so the user did not have to do it, they'd probably consider it infringement.

This is where we're getting to the part where the technical details have relevance. A website isn't a device, it's a piece of information which is rendered by a third party device. You are just telling them where they can find the information. But the third party browser on the third party device has the capacity to fetch and display it for the user.

Consider a similar scenario: Devices improve to the point that they can parse the words "for the text and images on this page, please see Encyclopedia Brittanica volume B, page 38" and then automatically fetch and display the images. Has your sentence retroactively become infringing because the user's device has improved?

This sort of thing starts to have real salience when you get into things like content addressable storage, where the hash of the data both identifies it and can be used to locate, obtain and authenticate it.

""Details are irrelevant" is the argument you get from people who don't want to consider the implications of the details."

That's just a silly dig, considering i've spent years of my life and training considering the implications of the details of these very things.

"Is this not exactly the sort of thing companies do on a regular basis to avoid, for example, taxes? Or minimum wage laws or a hundred other things like that? If there is a jurisdiction where it's legal then it's legal to do it in that jurisdiction, no?

This is basically a "laws should all be completely and totally logically consistent and judged by judgement automatons following finite state machines"

As much as the news and reddit may make that out to be what happens, it is not what happens in practice. In fact, in the very thing you are talking about, courts in various countries looked at it said "nope, not okay".

"But this is where we're getting to the part where the technical details have relevance."

IMHO, no, they don't

" A website isn't a device, it's a piece of information which is rendered by a third party device. You are just telling them where they can find the information. But the third party browser on the third party device has the capacity to fetch and display it for the user."

You can play this game all you want, i understand in detail the distinction you are trying to draw and pretty roundly reject it. It's just an attempt to abdicate intent and responsibility. The intent of the person who made the page is for the third party device to do what it did and display it. It did that.

If there was a <murder> tag that instructed devices to murder the person named by the text a loaded from the ref attribute, and i used the tag, you don't get to say "well, it was just a piece of information, interpreted by a third party device".

You intended it to murder someone when it was interpreted, and it did murder someone when it was interpreted.

The same way i wouldn't feel "All i did was give the third party murdering device a link to some instructions, not the instructions themselves" is not the kind of distinction i think makes a lot of sense to try to hang your hat on.

If the EFF/others want the law to be different, i'm actually all for it. I even think what i'm suggesting is a pretty shitty policy for the internet (and i spent years of my life fighting to push us towards a better copyright-free utopia ;P). But it's also what i think it says right now.

". Has your sentence retroactively become infringing because the user's device has improved?"

No, because that wasn't the intent at the time i did it.

> That's just a silly dig, considering i've spent years of my life and training cconsidering the implications of the details of these very things.

The silly dig is the argument that technical details are mostly irrelevant. It's possible for some details to sometimes be irrelevant, but it's hardly a generally applicable rule that gives you any useful information about when they are or aren't.

> This is basically a "laws should all be completely and totally logically consistent and judged by judgement automatons following finite state machines"

How is it that, and why is being logically consistent bad?

> As much as the news and reddit may make that out to be what happens, it is not what happens in practice. In fact, in the very thing you are talking about, courts in various countries looked at it said "nope, not okay".

If a company moves from the US to China and then doesn't pay US taxes on the operations in China and pay the Chinese workers the US minimum wage, they are breaking the law?

> The intent of the person who made the page is for the third party device to do what it did and display it. It did that.

You keep talking about intent when the problem is the precedent it sets. For example:

> No, because that wasn't the intent at the time i did it.

So what happens when you publish the same sentence with the same intent after it becomes public knowledge that devices can use the information to automatically fetch and display it? Is it no longer possible to perform the same action with the original intent?

If you're just requiring people to reconfigure things to give themselves plausible deniability about their intent then the whole thing is a waste of resources, but if you're going to prohibit people from identifying the information regardless of their intent then why are you making such a big deal about intent to begin with?

Fair use is seen as one of the more difficult laws to define in logical consistent terms, so lets start there. Can we create fair use definition in such way that a mathematical function separate all that should be defined as fair use, and all that should not based on unbiased measurable facts.

Common legal theory says that we can not do that. Fair use is inherently subjective and ruled on a balance of interests between copyright holders and the public good. The public good in turn is also extremely hard to define, and is usually seen as one of those things we know when we see it but can't attribute to logically consistent rules.

So this is a good example of what I'm talking about. You're talking about the difficulty of making a fair use determination, but the question in most of these cases isn't whether a specific action is fair use, it's whether any of the reasonable actions are. And you don't need to make an inherently subjective determination for that because the subjective cases are irrelevant if you can find any solid instance where the outcome isn't ambiguous.

The citation example makes the point pretty well. Suppose you make a citation -- this image is on page 34 of this book, using a standard machine-readable citation format.

There are multiple things the user and the user's browser could do with that information. It can show you links to stores where you can buy a print edition of that book, or it can look up the page in a location index and find electronic sources for the content of that page. Some of those sources and some of the uses of the content are plausibly unambiguous cases of fair use. Some of the sources and uses are plausibly unambiguous cases of piracy. They may even be the same sources but different uses.

If you want to evaluate one of the individual cases then you may have to make a complicated fair use determination, but we're not talking about an individual user, we're talking about the person providing the citation. Whether their intent is facilitating users buying the book, or using it in a clear case of fair use, or using it in a clear case of piracy, their action is the same. The action itself doesn't reveal their intent. You can't make the determination based on that because you don't know it.

The difference between this and the murder example is that the defendant's action isn't the directly prohibited thing. If you intentionally kill someone, that's what murder is. If you hire someone else to do it, you're still clearly intending that outcome.

The analogous thing would be selling weapons. Your obvious intent is to sell a knife, not to have someone murdered. That may secretly be your true motivation, but without any additional evidence of that there is no way to know, and certainly at least some of the people who sell weapons do so without the intent that they be used to commit murder.

It can be impossible to determining intent in some cases but that has not stopped law writers and politicians from defining intent and guilt in the absent.

The pirate bay case was actually a such example. The law that the judges cited in the case was based on the concept that if the majority usage of a tool is illegal then the owner of said tool can be held as an accomplish. The background text of that law was biker bars. The politicians wanted a way to confiscate the buildings, so they created the law. No intent needed of the owner, only establishing that the primary usage of the "tool" illegal and there you go. If you had a gun shop and the primary customers you got was murderers you could in theory be charged with assistance of murder in each case that the police can guess is likely to have happened. The pirate bay case also established that someone can be charged with with assistance even if the "original case" has not been proven.

Not saying any of that is good. The law is ugly, inconsistent and full of subjective aspects.

> The pirate bay case was actually a such example.

The pirate bay isn't in the US.

And in general, the fact that some bad laws exist that violate the general principles the legal system as a whole operates under is no excuse for condoning such laws or not construing them as narrowly as possible to mitigate the damage done to the justice system by naked populism like that.

If there are so many marijuana users that the majority of pipes sold are used for marijuana rather than tobacco, it makes absolutely no sense to punish the people selling pipes rather than either punishing the people actually using marijuana or just legalizing marijuana.

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.

"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."

Gonna disagree, but if you live in the ninth, that's already how they think :)

(now, FWIW; i'm also differentiating between what i think the law, as written right now, is supposed to mean, and what i think it should be. I think, right now, as written, this should be interpreted as infringement. I think the law should be changed, not twisted/ignored)

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.

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.

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?

Perhaps it helps to think about the physical equivalent...

Suppose your neighbor "hosts" some copyrighted material in their yard, either on a projection screen or a large poster.

If you decide your visitors may be interested in said content, and move your van out of the way so that your visitors may observe the content in your neighbor's yard as they walk to your front door, is that infringing?

If you additionally set up a sign pointing at your neighbors yard, causing your visitors to look in that direction, is that infringing?

If you decide to make some money by selling advertising space on a sign you set up on your property, right next to your neighbor's display (which is still on their property), is that infringing?

Note that to a casual observer who doesn't know or care where the property line is, the end result is nearly indistinguishable from what would have resulted if you had set up the projection screen or poster in your own yard. (The only difference is that it's a foot further away and controlled by a different person.)

Anyway, while it certainly seems sleazy to profit from your neighbors illegal display, it seems bizarre to conclude that pointing your visitors at your neighbor's display is the same as displaying it yourself.

Can we start suing Google then for Google cache or the WayBackMachine for the same? They are certainly republishing my pages without permission. That's copyright infringement according to this criteria too. In fact, they host the content on their servers so there isn't even this technicality. What about the snippets Google shows in its search results? What about Slack when it embeds part of my page when someone posts a link?

TheWayBackmachine is operated by a library which gives them special license under copyright law. That said they will not make your page available publicly if you tell them not to.

Google cache is copyright infringement however it may or may not be excusable under fair use depending on the circumstances.

"Can we start suing Google then for Google cache or the WayBackMachine for the same?"

Already happened. Multiple times. In fact, the precedent the EFF is talking about was "Perfect 10 v. Google", which was about caching, thumbnails, and framing in google image search.

Yeah, to be clear when I said “makes sense” I was referring to what allows for a functional ecosystem of Twitter, users, media, etc. and not a legal evaluation. IANAL and all that.

In this case wouldn’t your innocent infringement example apply? As I understand it there’s an implicit license to use the content of tweets via an official Twitter embed. That would mean it would be fine to show the image via an embedded tweet from the copyright holder, as they agreed to that by posting the tweet in the first place and presumably could revoke that right by deleting the tweet. So the argument would be that the media sites had the rights to republish the tweet and thus believed that the author of the tweet had the rights to the contents of the tweet (which they didn’t). Is that logic not applicable here or is it that a media company should know better and thus it’s not a reasonable mistake?

Also wouldn’t the DMCA be applicable here as the method by which the photographer could get the photo removed from Twitter?

"good faith" doesn't make infringement non-infringing. It might mitigate damages though, for not being willful.

EFF Deeplinks has a consistently bad record for misinterpreting court cases to drum up controversy, and today's example fits the pattern.

(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....

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".

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

More accurate title would be, “Federal judge doesn’t understand how the internet works”

Thanks for clearing that up. If the FSF interpretation is inaccurate in this concern, that means embedding infringing content is also infringing, but that doesn't pose a threat for embedding non-infringing tweets? The problem is, as usual, embedders cannot differenciate one from the other - how should you tell the person who made the picture and the person posting it apart?

Of course, US being the US, nobody wants to step up to protect anything remotely a consumer...

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

Perhaps there's a difference in that embeds can display the content without directing the viewer to page. Consider:

* Embedding a copyrighted image.

* Linking to the original page that hosts said image.

In the latter case the copyright holder would still monetize of of, say, ads hosted on their website. Whereas in the former the copyrighted work would likely be displayed without the chance for the copyright holder to monitize.

I'm more surprised that Twitter doesn't have a clause where all users waive copyright to any posted on their website. Otherwise essentially all social media platforms would constantly be infringing. I upload my profile pic to Facebook, I can't turn around and sue them for the fact that it's displaying this image to all other Facebook users viewing my profile.

ThePirateBay is an example that muddies the distinction.

In the latter case the copyright holder would still monetize of of, say, ads hosted on their website.

I'd have an easier time with this reasoning if I saw more legal argument directly addressing why "exclusive right to their respective writings" includes the right to require readers to also see something else at the same time as they view the writings.

The social media terms of service typically include granting a global sublicensable royalty-free license to all copyrighted content you upload.

Which is why it's surprising to see the photographer going after the publications; it makes more sense to go after the 'someone else' who tweeted the picture. I suspect that it's a case of targeting those who are more likely to be able to pay out in case of a win in the courts.

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.

> 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.

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.

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.

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

There are unfortunately plenty of other ways to learn that lesson.

On the up side it may encourage people to participate in distributed systems that are more resilient against arbitrary censorship.

> rule of law [is] essential to modern civilization.

I feel like that is a false assumption. How often do you actually appeal to law in your day to day life?

I feel like we rely on the implied threat of the law 1000x more than we rely on explicitly calling the law.

I think the threat of an internet mob ala Cecil the Lion could be just as effective.

Tell that to African Americans in the South when lynchings were a thing.

If anything, the rule of law of the time all but directly promoted and encouraged it.

No. The definition of lynching is that it is without legal authority. What blacks were suffering from was the absence of the rule of law.

Now, true, the legal authorities were often complicit. But that's still the absence of the rule of law, not the presence of it.

I think we rely on social mores

justice system

It's not a justice system, it's a judicial system. It exists to follow precedent, set new precedent, maintain order, and preserve the authority of the government.

Unless you are talking about any decision that upholds the individual rights of citizens against the government, i.e., the Bill of Rights. Your cynical take doesn't map very well to reality.

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

Quite the contrary. This is a lesson that we should all hope is well-learned by the vast majority of people so that it can be fixed, rather then blindly venerated.

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

That "the rule of law" is necessary for a modern society to function doesn't mean that every system of laws is beneficial or conducive merely by its existence. The unfortunate fact is that our system of laws, at it exists, is "stupid and broken", in a wide variety of ways, and badly needs fixing. We can't start fixing our broken system until we come to terms with the fact that it is broken, identify the problems, and develop the solutions.

Teaching? It's already been taught and learned. It does indeed erode such ideas. I guess that's what our society wants when it implements the multitude of stupid laws it does, copyright certainly among them. Hell, anyone who's ever smoked a joint already knows this to be the case as does anyone who is a minority. Maybe our ideas about the rule of law should be eroded, considering how poorly implemented the idea is here in the US.

My read of this is that embedding a tweet is not copyright infringement, rather the issue is that the tweet in question, was itself, infringing a work.

This is still a bad ruling, of course.

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.

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

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

Thank you. Autocorrected

> Help me understand why displaying the tweet that included the image should not be infringement when displaying the image directly is.

I don't think anyone is saying that.

I think the main point of disagreement is over whether linking to a work infringes it's copyright. Some of us think linking never infringes, whereas others think it depends on how much (explicit?) user action is needed to follow said link.

Personally, I think that is opening a huge can of worms, because it means that when I write something, whether or not I am infringing someone's copyright depends not (only?) on what I have written, but on how others end up using what I have written.

I think the decision ultimately rests on conflating writing instructions to do something with actually doing it. It probably doesn't help that programmers are often somewhat sloppy when talking about their code. Eg: "When we receive request X we will respond by Y." vs. "I have written/modified program Z, so that when it is run and it receives request X it will respond by Y." Generally no one will assume that you're actually sitting inside the server, personally receiving requests and responding to them, so there's little need to be explicit in saying that you have written a program.

When you write instructions on how to bake a cake, and someone else decides to follow said instructions, resulting in a cake, there is little debate over who has baked said cake.

When you write instructions on how to display an image, and someone else decides to execute said instructions on their computer, resulting in an image being displayed, then who actually displayed said image?

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.

> 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...

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?

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

The latter hides the context of the photo's owner.

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...

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

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

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

Twitter isn't quite an open broadcast, and even if it were it wouldn't necessarily mean it was entered into the public domain. A recording of a musician's public performance of their song is still under copyright; MLK's "I Have a Dream" speech is under copyright; literal broadcasts (TV/Radio) are still under copyright.

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?

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

It certainly should do.

> 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.

Well the tweet is under whatever terms Twitter imposes on you for using their service. But in this particular case, someone tweets a photo some other origination copyrighted.

I mean, technically taking a photo of a movie poster and tweeting it is infringement, but most movie companies have better things to do than go after you for it, especially if it's not disparaging and may promote the movie.

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