Hopefully most reporters, layout artists, and web designers at media companies understand that they can’t simply copy a photo or other illustration they find online and use it in their print, broadcast or online news report, without regard for any copyright issues. (Then again, maybe they don’t, since that scenario is a constant source of litigation.)
Until a recent court decision, a way of avoiding the copyright problems online, instead of downloading an image and then uploading it to illustrate a story, was inserting coding to “embed” a graphic or photograph, so that it appears to users of a website but has not been copied and uploaded to that site. Instead, it remains stored as part of the site where it originated, which presumably has the copyright or obtained permission to use the image. This technique is used not only to “embed” photos and graphics, but is also often used to show social media posts in news content.
The legal principle allowing this, known as the “server rule,” originated in a 2007 decision by the federal Ninth Circuit Court of Appeals, which covers nine western states. The case involved Google’s display of thumbnail versions on its site by embedding photos from the Perfect 10 website; the court held that such embedding was not copyright infringement because no actual copying was involved. According to a law review article on the subject, in the years since virtually every court that has considered the issue has adopted the reasoning of the “server rule.”
But 2017, federal trial judges in both Texas and New York rejected this concept, holding that use of an embedded link to display a copyrighted image without permission could violate the copyright owner’s exclusive right to display the image. The online free speech group the Electronic Frontier Foundation has decried these cases, calling one of them a “dangerous attempt to undermine the in-line linking system that benefits millions of Internet users every day.”
Most recently, in April another federal judge in New York used the “server rule” to dismiss a case against the website Mashable in an April ruling. But two other judges of the same court rejected the “server rule” in decisions in June and July, leading Instagram to forbid embedding of images from its site.
One or more of these New York cases could be appealed to the Second Circuit Court of Appeals, setting up the possibility of a conflict with the Ninth Circuit if the Second Circuit were to agree with the lower courts’ rejection the “sever rule.” Such conflicts often end up being resolved by the U.S. Supreme Court.
The Fourth Circuit, which includes South Carolina, does not appear to have ruled on the issue. Read more