India: Embedding Of Tweets Amounts To Infringement Of Copyright - Case Study - Justin Goldman v Breitbart News Network & Ors., Heavy, Inc.

Last Updated: 21 May 2019
Article by Singh & Associates


On July 2, 2016 the plaintiff Justin Goldman clicked a photograph of football quarterback for the New England Patriots Tom Brady with Boston Celtics manager Danny Ainge and others in East Hampton and posted it on his snapchat story speculating that Brady was helping recruit basketball star Kevin Durant to the Celtics. The photo went viral and was shared on Twitter and other social media platforms by various twitter users including famous television anchor Cassidy Hubbarth among others finally finding its way to the defendant's website through the act of 'embedding (displaying images of)' the Tweet into articles which these defendants' news outlets and blogs published.

Each of defendants' websites prominently featured the photo by "embedding (displaying images of)" the Tweet into articles they wrote over the course of the next 2 days speculating whether the Boston Celtics would successfully recruit basketball player Kevin Durant, and if Tom Brady would help to seal the deal. Thus, the case involves the question of how the images shown on one website but stored on another website's server leads to infringement of the owner's exclusive copyright to such image.

As a result of the embedding function, none of the websites downloaded, copied or stored the photograph on their own servers; instead, the function directed the internet browsers of users who accessed the defendants' sites to retrieve images of the embedded tweets from Twitter and place the images alongside the text of the articles.

Plaintiff sued the news outlets for copyright infringement, and the defendants moved for partial summary judgment on the issue of whether their display of the embedded tweets on their websites violated plaintiff's exclusive right to publicly display his photograph under Section 106(5) of the US Copyright Act, 1976.


1. Whether the act of embedding by the defendants an infringement of the right to display of the plaintiff.

2. Whether the images shown on one website but stored on another website's server leads to infringement of the owner's exclusive copyright to such image.


The defendants relied on the Ninth Circuit's "Server Test," articulated in the 2007 decision in Perfect 10, Inc. v. Amazon1 and argued that the same shielded them from liability because they did not host the photograph on their server; infact it was hosted on Twitter's servers. In Perfect 10, the Ninth Circuit held that whether a website publisher is directly liable for infringement turns entirely upon whether the image is hosted on the publisher's own server. In doing so, the circuit court held that Google was liable for infringement in connection with the display of thumbnail images as part of its Google Image Search, because it hosted those images on its server, but was not liable for the full-size images accessed by clicking on the thumbnails, which were hosted on third-party servers. The Plaintiff countered that Perfect 10's Server Test is inconsistent with the purposes of the Copyright Act and does not in any event apply to cases like his. He also argued that the test's application could have a "devastating" impact on photography and visual artwork licensing industries by eliminating incentives for websites to pay licensing fees.


The Court granted partial summary judgment to the plaintiff. The ratio laid down in the case is that physical possession of an image is not a necessary element to its display for purposes of the Act and embedding such images through host server websites without a license is infringement under the Copyright Act, 1976. The Court went on to discuss the judgment in Perfect 10, Inc., vs. to deny the applicability of server's test to the present case. According to the server's test, the Perfect 10 judgment held that full size images stored on third party servers displayed on Google search and accessible through in-linking, like embedding were not copyright infringements. The Court however considered the line of judgments quite scattered as the lower Court in Flava Works Inc., v Gunter2 held that website's servers need not actually store a copy of the work in order to 'display' it. While most other judgments did not apply server's test to arrive at a decision, it was in the case of The Leader's Institute, LLC v Jackson3 where the Court rejected the Perfect 10 judgment by rejecting the criteria of actual possession of a copy as a necessary condition to violating a copyright owner's exclusive right to display.

Factual distinctions from Perfect 10 judgment relied upon by the plaintiff includes the fact that in the present set of facts the user took no action to 'display the image' and hence the assistance provided by the search engines such as Google whereby the user navigates from webpage to webpage is not the same as opening up a favorite blog or website to find a full color image awaiting the user, whether he or she asked for it, looked for it, clicked on it, or not. Moreover, search engines merely indexed the web facilitating the users to readily find information wherein the users are engaged in direct connection with third party websites which are themselves responsible for transferring the content.


The judgment was debunked and criticized on several grounds. The major arguments were raised by public interest groups such as Electronic Frontier Foundation and Public Knowledge, who even filed an amicus brief before the Court urging the application of the Server Test so as to allow the in- linking where the servers of the website do not physically possess the images (or the copyright content) but merely provide a link to the host website. The Copyright Act, 1976 refers to the infringement of 'right to display' where the party 'shows a copy of it' wherein the copy includes a 'material object which is fixed and from which the work can be perceived, reproduced, or otherwise communicated, either directly or through a machine. Thus, it was rightly held in the Perfect 10 Inc., v Amazon, Inc.4, where the Court opined the Server's Test to mean that as long as Google is not storing a copy of the image and merely directing the user's browser to the host website of the publisher which stores the image it is not infringement of copyright. Though Judge Forrest claims that the case laws with respect to the applicability of the said doctrine is scattered, yet a number of judgments such as in the cases of Flava Works, Inc v. Marques Rondale Gunter5, etc., the Perfect 10 judgment has been accepted by the Courts. Further, the reliance on the Aereo judgment6 can be questioned on the ground that the Court referred to scenarios physical transmission of signal of work is done in the presence of a copy of work to mean performance of the right. This is the exact role played by the server and hence it favors the defendants in the case rather than the plaintiff. Moreover, the technical distinction of the user ultimately 'choosing' the program consequent to which the transmission took place was held to be immaterial in the Aero Decision, whereas the Goldman case was based on the technical distinction as to the storage of the images in the defendant's servers being the vital question to determine infringement.

The judgment has been criticized considering the limitation it creates on the sharing of content on the Web and the far-reaching consequences on commercial interests, viewership rates and the medium of expression, which the internet boasts of.7 The server's test places a limit on the liability in case of copyright infringement which encourages and allow users to create interesting web content in the form of comments on recent news, videos, expressing opinions etc. , all of which will be curbed if the freewheeling use of embedded content is disallowed. In fact, social media websites such as Facebook, Twitter, YouTube who especially provide for 'embed link' options, will face difficulty with respect to the commercial returns in the form of advertising revenues generated from the traffic created through the 'embedding of links'

While India is yet to deal with any such case which where such copyright infringement of embedded web content is questioned, international decisions outside the American Jurisprudence highlights that embedding is not an act of copyright infringement. In the case of Best Water International GmbH v Michael Mebes and Stefan Potsch, wherein the Court had to decide whether promotional videos by sale representatives of Best Water on their own websites from YouTube is infringement of Copyright or not. The Court though referred to the Directive under the European Union and interpreting the same arrived at a conclusion whereby that when the embedding is done in a website of a protected work which is publicly accessible on another website through a link using the framing technology would not mean communication as per the European Union Directive. Thus, mere usage of a different technical means from the original means of communication does not create liability.

Thus, the embedding of twitter links, as performed by the defendants in the Goldman Case must not amount to infringement of copyright as it is mere communication and transmission of links and does not consist of any transfer of the web content itself for which the users are and will be redirected to the host website. The appeal in the Second District with respect to the judgment is awaited to put an end to the difficulty of thousands of general internet users by upholding of the Server's Test.


1 508 F.3d 1146 (9th Cir. 2007)

2 2011 WL 3876910 at * 4(N.D. III. Sept. 1, 2011)

3 2017 WL 5629514 (N.D.Tex. Nov. 22, 2017)

4 508 F.3d 1146, 1160 (9th Cir. 2007) 17 U.S.C 101

5 689 F.3d 754 (2012)

6 American Broadcasting Cos., Inc. v Aereo Inc 874 F. Supp. 2d 373, 377–79 (S.D.N.Y. 2012)

7 Packingham v North Carolina, 137 S. Ct. 1730, 1735 (2017)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions