In 2016, Justin Goldman took a picture of New England Patriots’ quarterback, Tom Brady, walking with the president and manager of the Boston Celtics, Danny Ainge.

Goldman uploaded the picture to his private Snapchat Story page and shortly thereafter the image went viral. Those who had access to his personal page uploaded the image to social media platforms such as Twitter and Reddit. The image was then picked up and embedded to the pages of multiple news organizations: Breitbart News, the Boston Globe, Yahoo, Heavy, Time, Vox Media, Gannett, Herald Media, and the New England Sports Network (defendants).

Goldman sued the news organizations that used the picture stating he “never publicly released or licensed his photograph,” and the news outlets embedding the image on their sites violated his exclusive rights to display the photo. The defendants filed a motion for summary judgement.

Courts have typically held that liability for copyright resides with the entity that hosts the copyrighted material – not the individual that linked to the material. This was most evident in the 2007case Perfect 10 v. Amazon. The 9th Circuit ruled that defendants could not be held responsible for infringement unless they willingly stored the copyrighted material on their servers. This became known as the “sever test” which has been a guideline for many online infringement cases, one in which the defendants argue is the “unbroken line of authority.”

Goldman v. Breibart et al., was heard by Judge Katherine Forrest of U.S. District Court of, who does not share the same view as the 9th Circuit. She did, however, find the 2014 Supreme Court ruling of American Broadcasting Companies, Inc. v. Aero, Inc., which involved performance rights to be relevant.  Aero wanted to allow their users to live stream television over the internet without purchasing licensing fees to the shows owners. Aero argued this was not copyright infringement as they were merely a facilitator of the programs. The Court disagreed and ruled that Aero was in effect similar to a “traditional cable company” and therefore was required to pay licensing fees.

The defendants in Goldman v. Breibart argued they did not host the image on their server they simply linked the image on their sites. This argument was unsuccessful as they still did not have the photographer’s permission to display the image on their sites. Forrest stated “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.” Forrest further stated “liability should not hinge on invisible, technical processes imperceptible to the viewer.”

Forrest noted the “server test” is not widely used outside the 9th Circuit and “the plain language of the Copyright Act, the legislative history undergirding its enactment, and subsequent Supreme Court jurisprudence provide 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… Nowhere does the Copyright Act suggest that possession of an image is necessary in order to display it. Indeed, the purpose and language of the Act support the opposite view.”

Defendants warned a denial would “cause a tremendous chilling effect on the core functionality of the web.” They further warned that not adopting the “server test” would “radically change linking practices, and thereby transform the Internet as we know it.”

Forrest disagreed with their defense as there are a number of “unresolved strong defenses to liability separate from this issue.” She denied the defendant’s motion for partial Summary Judgement and granted partial Summary Judgement to the Plaintiff, Justin Goldman.

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