Twitters Beware: The Display and Performance Rights

Jie Lian
21 Yale J.L. & Tech. 227

In a controversial decision in Goldman v. Breitbart, the U.S. District Court for the Southern District of New York ruled that, by embedding a tweet containing a copyrighted photograph in a webpage, defendants violated the copyright owner’s exclusive display right. In reaching this decision, the Goldman court explicitly rejected the “server test,” which was first established over a decade ago by the Ninth Circuit in Perfect 10 v. Google, and has since then become a de facto bright-line rule upon which many Internet actors rely. Because of the ubiquity of website embedding, this ruling has created significant legal uncertainty for online publications. Through the lens of statutory interpretation, this Note concurs with the Goldman court that the “server test” has a weak legal footing. However, this Note explains that none of the alternative defense mechanisms suggested by the Goldman court, including fair use, DMCA safe harbor and implied license doctrine, is adequate to protect legitimate embedding from copyright liabilities. Accordingly, this Note advocates for the enactment of a statutory exemption to protect legitimate embedding in the realm of Internet, which promises to serve as a bright-line rule for online publication and resolve the legal uncertainty created by the Goldman court.