• A License to Embed (See What I’m Doing Here?)

    by  • April 15, 2020 • copyright • 0 Comments

    I was going to blog Sinclair v. Ziff Davis, LLC, but @MarkJKings explained everything you need to know in a Twitter thread. So, by virtue of the license granted to me by Twitter, I present Sinclair.

    Plaintiff Sinclair is a professional photographer. Mashable approached her about including one of her photographs in an article about female photographers and offered $50. She declined, so Mashable published the article anyway, embedding one of Sinclair’s Instagram posts (image now removed but in the record):

    Sinclair accused infringement

    As you can see from the image, Mashable embedded an image Sinclair published herself to Instagram. Sinclair sued for copyright infringement. And here is where I turn it over to @MarkJKings:

    I interrupt this thread to explain Goldman v. Breitbart. It was a case that rocked the copyright infringement world. We had all been poking along thinking that the “server rule” made a ton of sense, that is, if you only embedded content on your webpage you hadn’t actually copied anything, so there wasn’t any infringement. Goldman v. Breitbart rejected that theory, holding instead that “when defendants caused the embedded Tweets to appear on their websites, their actions violated plaintiff’s exclusive display right; the fact that the image was hosted on a server owned and operated by an unrelated third party (Twitter) does not shield them from this result.”

    Back to @MarkJKings:

    Here’s a link to the Terms of Use in effect at the time.

    Here’s the copy of the Platform Policy submitted by the plaintiff. I found it pretty surprising that neither party appears to have submitted copies of either the Terms of Use or the Privacy Policy, but the court nevertheless went digging for them. The court even made a point of saying they had the right one:

    Back to Mark:

    THE END

    This result should surprise anyone. This possibility has been noted before.

    The plaintiff’s argument that the agreements were too convoluted was not met with sympathy. And as any contract lawyer could have predicted, the fact that the plaintiff had a dilemma, having to choose between private settings and therefore no exposure, or public settings but granting a license, also didn’t garner any sympathy from the court. And I’ll let you guess how the argument that the court wasn’t qualified to interpret the meaning of the legal documents fared for the plaintiff, other than to say that the Second Amended Complaint was dismissed with prejudice.

    Sinclair v. Ziff Davis, LLC, No. 18-CV-790 (KMW) (S.D.N.Y. Apr. 13, 2020).

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