Embedding Third-Party Content Links, Repeat Infringer Policies Under the DMCA, and Copyright Infringement

Recent court decisions have created some uncertainty for website operators and other online service providers about what conduct will expose them to copyright infringement liability. One issue relates to the scope of the public display right in the context of “in-line” linking. For many years, settled precedent in the 9th Circuit (Perfect 10 v. Amazon) has been that a website operator who embedded an image through an in-line link only infringes the copyright owner’s public display right when the operator hosts the image on its server; this is what is known as the “server test.”

However, a recent decision from the Southern District of New York (Goldman v. Breitbart News Networks), involving the embedding of a tweet in news articles, rejected the server test, instead concluding that the publishers’ act of embedding code to make the tweet appear in the articles was sufficient standing alone to violate the public display right.

Another challenge that website owners face is dealing with repeat infringers. The Digital Millennium Copyright Act (DMCA) provides safe harbors for online service providers from copyright infringement liability. One requirement to qualify for those safe harbors is the adoption and implementation of a repeat infringer policy. Two recent appellate decisions have grappled with that requirement while coming to differing results: BMG Rights Mgmt. v. Cox Comm. Inc. (4th Cir. 2018) and Ventura Content v. Motherless (9th Cir. 2018).

Companies should review their use of third-party content, licensing and repeat infringer policies, and ensure there are policies and strategies in place to address these issues.

This program will examine how the courts have treated the issue of embedded copyrighted content, and the lessons from the recent Goldman decision. The panel will also address recent court treatment of the repeat-infringer-policy requirement under the DMCA and provide general guidance on designing such policies.

1. Embedded copyright content
   1. Overview of copyright’s public display right
   2. Case law developments
   3. Best practices
2. Repeat infringer policies
   1. Overview of DMCA safe harbors
   2. Case law developments
   3. Designing repeat infringer policies

The panel will review these and other noteworthy issues:

• How does the Goldman decision impact the embedding of third-party content?
• What must counsel do to ensure the company’s repeat infringer policy falls within the DMCA safe harbor?
• What steps should companies and website owners take to address currently embedded copyrighted content?