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NY District Court Adds to Confusion Surrounding Embedding
In the rapidly changing environment surrounding the legal issue of embedding (a type of inline linking that displays images and videos hosted somewhere other than the current publisher's servers), the U.S. District Court for the Eastern District of New York has added another ruling that places the liability associated with such behavior in uncertain waters. On Nov. 2, 2020, the court dismissed plaintiff Michael Barret Boesen's Complaint against United Sports Publications, Ltd. (USP) on the grounds that it failed to allege a claim for which relief could be granted under Rule 12(b)(6). Boesen v. United Sports Publs., Ltd., No. 20-CV-1552 (ARR) (SIL), 2020 U.S. Dist. LEXIS 203682 (E.D.N.Y. Nov. 2, 2020)
Embedding social media has been a commonplace practice for years. Indeed, it is still commonplace to see Instagram and twitter posts embedded throughout other publishers' content. Such a practice seemed safe under the Ninth Circuit's "server test" adopted in Perfect 10, Inc. v. Amazon.com, Inc, 508 F.3d 1146 (9th Cir. 2007). However, in recent years, the notion that embedders may be liable as copyright infringers has resurfaced as courts outside of the Ninth Circuit address the issue. See, e.g., Goldman v. Breitbart News Network LLC, 302 F. Supp. 3d 585, 590 (S.D.N.Y. 2018); Leader's Inst., LLC v. Jackson, No. 3:14-CV-3572-B, 2017 U.S. Dist. LEXIS 19355, 29-30 (N.D. Tex. Nov. 22, 2017); McGucken v. Newsweek LLC, No. 19 Civ. 9617 (KPF), 2020 U.S. Dist. LEXIS 96126 (S.D.N.Y. Jun. 1, 2020).
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