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Courts can’t decide if embedding photo and video tweets could constitute copyright infringement

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In 2007, the US Court of Appeals for the Ninth Circuit ruled that embedding posts with copyrighted images from social media sites on other websites does not constitute a copyright violation.

The ruling, known for establishing the so-called “server test,” states that unless content is stored on the server of a site sued for copyright infringement, the accusation does not stand thanks to the nature of the embed technology.

But now this rule is getting increasingly challenged in federal courts, with those in New York more prone than ever to allow copyright cases involving embedded content to proceed, Bloomberg Law writes.

In one ruling published in late July, the District Court for the Southern District of New York found the server test rule to be “contrary to the text and legislative history of the Copyright Act.”

The implications of what appears to be emerging as the “anti-embed” trend could be multiple, affecting both the way social media and sites embedding content posted there and stored on their servers function. Furthermore, the already complicated legal scene in the US around online copyright rules could become even more complex if the the main appeals courts tackling copyright cases – the Second and Ninth Circuits – take opposing stances.

The upcoming judgment in a lawsuit involving Newsweek could, if lost on appeal, bring this issue to a head and require the US Supreme Court to get involved in order to address the rift.

In the meanwhile, sites embedding content are not the only ones facing legal action. Social networks like Instagram are too. The Facebook company is dealing with a class action lawsuit in California, accused of “inducing infringement” by providing embed tools (i.e., APIs).

Copyright lawyers are supportive of the recent trend and expect it to continue, arguing that the server test rule does not take into account “display and public performance rights that are part and parcel with copyright” – as Foley Hoag LLP’s Joshua Jarvis put it.

But their intellectual property counterparts see it from a different angle – that rights holders who don’t want to see their content embedded should not upload it on social media platforms that provide embed tools.

According to Fenwick & West LLP’s Andrew P. Bridges, “friction on the internet” would be increased “massively” without the server test, while he fears “chaos” if displaying embedded content becomes a legal liability.

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