Between the Supreme Court, Congress, and the Embedded Post: A Need for Copyright Clarification

By: Gracie Loesser

You may know already that copying an image from the internet and pasting it onto your website or blog can get you into trouble. But you might be surprised to learn that embedding images can get you in just as much trouble.

Both methods of sharing media implicate Section 106 of the U.S. Copyright Act, which gives copyright holders the exclusive right to “display the…work publicly,” meaning all other individuals are not allowed to “show a copy of it, either directly or by means of a film, slide, television image, or any other device or process…” or they may be brought to court for copyright infringement. Although copying and pasting another person’s copyrighted content on to your webpage is widely accepted as an act of infringement by U.S. courts, the use of embedding technology to accomplish the same task is still an unsettled question.    

What is embedding, anyway?

Embedding technology allows anyone to render a visual image of remote content directly onto their own webpage, functioning as a kind of window into the external page. Embedding provides a much more polished and digestible presentation than a simple URL link and eliminates the need for viewers to leave the page at all. Embedding content is easier now than ever before, as social media applications, web hosting services, and other platforms offer user-friendly tools that facilitate embedding nearly every kind of content imaginable.

The problem is that U.S. courts are torn on whether this now-ubiquitous form of content sharing constitutes infringement.

Is unlicensed embedding a violation of the Copyright Act?

The Ninth Circuit and the Southern District of New York are staunchly divided on the legality of unauthorized embedding, and the Southern District’s recent rulings have only sharpened that divide.

The Ninth Circuit first addressed the issue in 2007. In Perfect 10 v. Google, the court articulated a standard which it called the “server rule,” holding that website publishers who embed copyrighted material into their pages are not guilty of infringement. The court reasoned that embedding content did not constitute a “display” of the material under Section 101 of the Copyright Act, since the website publisher was merely creating a frame to view the material on the original host server. Several courts have since adopted and applied the “server rule” in infringement cases.

Over the last fourteen years, the Ninth Circuit’s “server rule” has faced scrutiny from courts and legal experts. One of the most vocal opponents to the rule has been the Southern District of New York. The Southern District first explicitly rejected the “server rule” in 2018, finding “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 District Court has maintained its position over the years, most recently this past July 2021 in Nicklen v. Sinclair Broadcast Group.

How can we reach a consensus?

Given the near-ubiquitous use of embedding tools on the internet, U.S. copyright holders and internet users deserve a clear answer. That answer could come from either the Supreme Court or Congress.

The Supreme Court has not indicated an interest in weighing in, but this issue does seem prime for the Court’s review. Mindful of the public’s interest in judicial predictability, the Supreme Court will often grant certiorari for cases involving legal questions that lower courts can’t agree on. In the present issue, there is obvious disagreement among courts on how to resolve embedding copyright infringement claims, and the resolution of this split will have major implications for social media providers, news organizations, and other internet users. More broadly, the questions implicated are not limited to embedding, but are indicative of a larger concern: adapting the Copyright Act to address developing technologies. The Supreme Court will likely continue to face questions regarding the role of copyright protection in the ever-evolving digital world over the next five to ten years.

Congress could also take action. Indeed, Congress may be a better vehicle for modernizing existing copyright law since the current difficulty arises mainly from the fact that the Copyright Act does not sufficiently address the reality of our current media landscape. Legal scholars are actively encouraging Congress to take action by amending the Copyright Act, but it is unclear whether Congress has the political motivation to pursue such legislation. Congress seems more polarized than ever, and its inability or unwillingness to pass substantial bipartisan legislation suggests a prompt legislative remedy is unlikely.

Meanwhile, the demand for user-friendly content sharing options shows no signs of slowing. As developers unveil new technologies to meet this demand, the U.S. legal profession will need to keep pace to make sure that U.S. copyright law is reflective of our increasingly digital world.

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