Judge Erases Key Ruling From ‘Perfect 10’ Copyright Lawsuit

CYBERSPACE—A landmark series of copyright lawsuits by an adult site, Perfect 10, has now been cited in a new ruling that could have far-reaching implications not just for the online adult industry, but for any company or even individual posting content on the internet, including “mainstream” news organizations. The ruling issued February 15 by federal judge Katherine Forrest, of New York’s Southern District court, holds that embedded tweets that contain copyrighted images could be considered copyright infringements. Because the social media platform Twitter makes embedding tweets in blogs and web pages a simple, cut-and-paste function, and the practice is nearly universal from multimillion-dollar professional news sites to personal blogs, experts say that if Forrest’s ruling stands, online publishing could enter a new, more restrictive phase. The Electronic Frontier Foundation, one of the longest standing online civil liberties groups, called the judge’s ruling “legally and technically misguided.” The lawsuit was brought by an individual named Justin Goldman, who took and posted a photo of New England Patriots quarterback Tom Brady—an image that was then added to a tweet by a third party. That tweet was then embedded into online news articles by various media organizations including the publinshing giant Time Inc., the right wing site Breitbart news, and the content aggregation site Heavy.com, all of whom are named as defendants in Goldman’s lawsuit. The judge’s ruling, that simply embedding the tweet containing Goldman’s photo could violate his copyright, appeared to throw out the key holding from an earlier Perfect 10 lawsuit—a holding that has governed online copyright law ever since the ruling in 2007.  Perfect 10, often described as a “copyright troll,” made it a main element of its business to sue others for damages over copyright infringement. In the 2006 Perfect 10 v. Google case, the adult site sued the search engine giant saying that Google’s display of thumbnail images in its “image search” feature violated Perfect 10’s copyright when the site’s images of nude models appeared in Google searches. The site lost that case on most grounds—but perhaps the most important holding by the United States Ninth Circuit Court in the Perfect 10 cases, in particular the 2007 Perfect 10 vs. Amazon case, was what came to be called the “server test.” If a site embedded an image but did not host that image on its own server, it could not be held liable for infringement, the court ruled. In last week’s ruling, Judge Forrest overturned the “server test” ruling. The judge held that the server test should not apply to news sites because those sites display the embedded image regardless of whether a user “asked for it, looked for it, clicked on it, or not." But in the case of search engines such as Google or the Amazon search, a user “navigated from webpage to webpage, with (the search engine’s) assistance."  But according to EFF attorney Daniel Nazar, Forrest’s ruling appears to be without legal precedent. "This is a distinction that's being drawn really for the first time in this case," he told Wired magazine online. But in the judge’s ruling, she held that the server test makes no legal sense, because there is “no basis for a rule that allows the physical location or possession of an image to determine who may or may not have 'displayed' a work within the meaning of the Copyright Act." The news organizations will almost certainly appeal the ruling, which throws out what the EFF and other digital rights groups called "a legal cornerstone of Internet communication."