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Embed API copyright loophole looking shaky

US courts have once again ruled that media outlets cannot sidestep copyright licensing by embedding images or video via social media.

Paul Nicklen during his 2011 TED talk. Photo: Steve Jurvetson. Source: Wikimedia.

Canadian conservation photographer and National Geographic contributor, Paul Nicklen, published a video in 2017 of a starving polar bear wandering the Canadian arctic to Instagram. The video went viral, with numerous media outlets using the social media embed API to feature it online. This included the publicly listed telecommunications conglomerate, Sinclair Broadcasting Group, which displayed the video via the Instagram Embed API without permission or licence on several websites.

After ignoring Nicklen’s takedown notice, the photographer sued Sinclair for copyright infringement.

It has never been more risky for a media outlet to use an Embed API to feature copyrighted works, with recent cases ruling in favour of photographers who found their work embedded in news articles without permission.

Although up until now the Embed API has been an industry standard for online publishers, with the assumption that this method wasn’t copyright infringement. In the US this is two-parts thanks to protection offered by the Fair Use exemption and the controversial US Server Test, which permits displaying copyrighted material provided it’s not hosted on the offending website’s server.

The Embed API works by copying code to display content in a third-party location, while crucially keeping it hosted on the social media platform. But a 2018 ruling found that several news sites had infringed copyright by embedding a photo, setting shaky precedent for future use of the Server Test.

Since then this defence has been used less, and in the last 12 months news outlets have become more cautious regarding embedding content from social media.

The Sinclair Broadcasting Group’s legal team, perhaps foolishly, attempted to use the Server Test to have the case thrown out. Judge Jed Rakoff stated the Server Test is at odds with the Copyright Act, which ‘defines “to display” as “to show a copy of” a work, not ”to make and then show a copy of the copyrighted work”.’

‘A photographer who promotes his work on Instagram or a filmmaker who posts her short film on YouTube surrenders control over how, when, and by whom their work is subsequently shown – reducing the display right, effectively, to the limited right of first publication that the [Act] rejects.’

Sinclair then argued that photographers can simply control their work by not uploading it to social media. Although Instagram doesn’t have an opt-out feature of the embed API, Nicklen could delete his video from Instagram and Sinclair would no longer host it.

The judge doesn’t agree, stating that what good is copyright at granting authors the ability to display the work publicly if that doesn’t include online in social media. In regards to alleged online copyright infringement via the Embed API, that ruling may just about put the Server Test to bed.

The lawsuit will continue. But so far the case is leaning in favour of the photographer.

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