Copyright and Shareability: A Contractual Solution to Embedding via Social Media

Abstract

An emerging change in judicial interpretation of copyright law threatens to unsettle well-settled expectations about the permissibility of embedding Internet content. Changes to the permissibility of embedding would inject uncertainty into a legal landscape that has proven foundational and has supported creators of all kinds. This jurisprudential shift would likely prompt social media platforms to alter the technological affordances offered to users, such as removing features that facilitate embedding. To preserve embedding affordances, this article offers a novel solution: model contractual language that platforms can adopt in their user agreements to license embedding and foster shareability. This article’s proposed licensing provisions would give clarity, precision, and predictability about the permissibility of embedding online, notwithstanding any change in judicial interpretations of copyright law.

Note

Isabela Palmieri is a first-year associate at Troutman Pepper Hamilton Sanders, LLP. She received her J.D./M.A. dual degree from the University of North Carolina School of Law and Hussman School of Journalism and Media. This article is an extension of Palmieri’s master’s thesis. A previous unpublished version of this article was awarded Second Place Faculty Paper by the Association for Education in Journalism and Mass Communication. Amanda Reid is an associate professor at the Hussman School of Journalism and Media, and she served as Chair of Palmieri’s master’s thesis.

Notes

1 McGucken v. Newsweek (McGucken III), LLC, No. 19-cv-09617, 2022 WL 836786, at *1–2 (S.D.N.Y. Mar. 21, 2022).

2 Id. at *2.

3 Id.

4 Id.

5 See infra notes 42–47 and accompanying text.

6 McGucken III, 2022 WL 836786, at *2.

7 Corinne Tan, Regulating Content on Social Media: Copyright, Terms of Service and Technological Features 5 (2018).

8 Jie Lian, Note, Twitters Beware: The Display and Performance Rights, 21 Yale J.L. & Tech. 227, 235 (2019).

9 See Patrick Shawn Hearn, What Does Embed Mean?, Lifewire Tech for Hums., https://www.lifewire.com/what-does-embed-mean-4773663 (last updated Dec. 2, 2019) (explaining how embedded content works depending on a user’s privacy settings or platform’s built-in code generator); Jane C. Ginsburg & Luke Ali Budiardjo, Embedding Content or Interring Copyright: Does the Internet Need the “Server Rule”?, 42 Colum. J.L. & Arts 417, 443 (2019); Michael J. Lambert, Examining the Embedding Evolution: Counseling Clients on Safely Embedding Copyrighted Materials, 35 Comm. Law. 7, 7 (2020).

10 See, e.g., Neil Weinstock Netanel, Temptations of the Walled Garden: Digital Rights Management and Mobile Phone Carriers, 6 J. Telecomm. & High Tech. L. 77, 80 (2007).

11 See, e.g., Jon Porter, Twitter Change Leaves Huge Gaps in Websites, Verge (Apr. 6, 2022, 7:18 AM), https://www.theverge.com/2022/4/6/23012913/twitter-tweet-embeds-deleted-tweets-empty-iframe-broken (“Twitter has made a small but significant change to how deleted tweets are shown when they’re embedded in third-party websites. Since at least the end of March the social media network has started showing a blank box on external sites when an embedded tweet has been deleted.… It’s a big change from how Twitter used to handle deleted-yet-embedded tweets, when it would preserve the original unformatted text. With this recent change, that text is now gone, leaving a hole inside any story that embedded it.”).

12 17 U.S.C. § 106.

13 Harper & Row, Publishers v. Nation Enters., 471 U.S. 539, 598 (1985).

14 See, e.g., Jessica Litman, Sharing and Stealing, 27 Hastings Comm. & Ent. L.J. 1, 19 (2004) (“[Divisibility] is much worse in the Internet context because copyright owners have asserted, so far successfully, that every time a work is made available over the Internet, someone has reproduced the work, distributed the work, and publicly performed or displayed the work.”).

15 Although some litigants have argued embedding infringes on their reproduction right, no court has decided the merits of this argument. See, e.g., McGucken v. Newsweek LLC (McGucken I), 464 F. Supp. 3d 594, 599 (S.D.N.Y. 2020); Walsh v. Townsquare Media, Inc., 464 F. Supp. 3d 570, 580 (S.D.N.Y. 2020).

16 17 U.S.C. § 106(5).

17 Id. § 101.

18 Id. § 106(5). To display a work “publicly” can mean one of two things. A work is displayed publicly if it is displayed in “a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.” Id. § 101. A work is also displayed publicly if it is transmitted or displayed “to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” Id. As recently interpreted by the Ninth Circuit, this definition only requires the display to be “open” to the public, regardless of whether anyone actually viewed it. Bell v. Willmott Storage Services, LLC, 12 F.4th 1065, 1074 (9th Cir. 2021) (“The Copyright Act does not require proof that the protected work was actually viewed by anyone.”).

19 508 F.3d 1146 (9th Cir. 2007).

20 Id. at 1155.

21 Ginsburg & Budiardjo, supra note 9, at 426. These authors cite Live Nation Motor Sports, Inc. v. Davis, as the only decision from 2007 to 2017 that departed from the server test. Id. at 426 n.38; see also Live Nation Motor Sports, Inc. v. Davis, No. 06-CV-276-L, 2007 WL 79311, at *4 (N.D. Tex. Jan. 9, 2007).

22 See, e.g., Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585 (S.D.N.Y. 2018).

23 Leader’s Institute, LLC v. Jackson, No. 14-CV-3572-B, 2017 WL 5629514 (N.D. Tex. Nov. 22, 2017).

24 Goldman, 302 F. Supp. 3d at 585; Nicklen v. Sinclair Broad. Grp., Inc., 551 F. Supp. 188 (S.D.N.Y. 2021); McGucken III, No. 19-cv-09617, 2022 WL 836786 (S.D.N.Y. Mar. 21, 2022).

25 We use the term “fared use” while acknowledging there is no compulsory license for embedding. The term is meant to convey that users must either pay for a license or be excluded from use, absent an applicable defense or exception. See, e.g., Tom W. Bell, Fair Use vs. Fared Use: The Impact of Automated Rights Management on Copyright’s Fair Use Doctrine, 76 N.C. L. Rev. 557 (1998) (proposing that “fared use would subject copyrighted material in a digital intermedia to a reciprocal quasi-compulsory license”); see also Wendy J. Gordon & Daniel Bahls, Symposium, The Public’s Right to Fair Use: Amending Section 107 to Avoid the “Fared Use” Fallacy, 2007 Utah L. Rev. 619, 621 (“‘Fared use’ is use for which a license is purchased.”); Wendy J. Gordon, Fair Use Markets: On Weighing Potential License Fees, 79 Geo. Wash. L. Rev. 1814, 1825 (2011) (“Some saw no great evil in substituting ‘fared use’ for ‘fair use,’ but most disagreed sharply.”).

26 McGucken III, No. 19-cv-09617, 2022 WL 836786 (S.D.N.Y. Mar. 21, 2022).

27 Id. at *5–6.

28 Id. at *6–7.

29 Id. at *8–9.

30 Id. at *9.

31 See 17 U.S.C. § 102.

32 See, e.g., Jonathan A. Obar & Steven S. Wildman, Social Media Definition and the Governance Challenge—An Introduction to the Special Issue, 39 Telecomm. Pol’y 745, 747 (2015) (comparing content consumption and content interaction).

33 Authors Obar and Wildman classify “sharing” content as content consumption. Id. However, sharing content can include activities that resemble content creation—such as including a user’s own commentary to the shared content. Thus, sharing content is more appropriately classified as content creation, rather than consumption.

34 Ginsburg & Budiardjo, supra note 9, at 440.

35 Id.

36 Id. at 440–41.

37 Id. at 440.

38 Id. at 441.

39 Id. at 442.

40 Id. at 440.

41 See, e.g., Litman, supra note 14, at 19.

42 Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585, 587 (S.D.N.Y. 2018).

43 Madeline Schachter & Joel Kurtzberg, Law of Internet Speech 935 (3d ed. 2008).

44 Goldman, 302 F. Supp. 3d at 587.

45 Lian, supra note 8, at 235.

46 See Hearn, supra note 9 (explaining how embedded content works depending on a user’s privacy settings or platform’s built-in code generator).

47 See id.; see also Ginsburg & Budiardjo, supra note 9, at 443; Lambert, supra note 9, at 7.

48 See, e.g., Embed Videos: Introduction, TikTok for Developers, https://developers.tiktok.com/doc/embed-videos (last visited Feb. 7, 2023) (TikTok); What Are Embeds on Instagram and How Can I Embed an Instagram Post or Profile?, Instagram: Help Center https://help.instagram.com/620154495870484 (last visited Feb. 7, 2023) (Instagram); How To Embed a Tweet on Your Website or Blog, Help Center, https://help.twitter.com/en/using-twitter/how-to-embed-a-tweet (last visited Feb. 7, 2023) (Twitter); How Do I Embed a Video From Facebook Onto a Website?, Help Center https://www.facebook.com/help/1570724596499071 (last visited Feb. 7, 2023) (Facebook); Embed Videos & Playlists, YouTube Help https://support.google.com/youtube/answer/171780 (last visited Feb. 7, 2023) (YouTube).

49 Lian, supra note 8, at 235.

50 Tim O’Reilly, What Is Web 2.0: Design Patterns and Business Models for the Next Generation of Software, 65 Commc’ns. & Strategies 17, 17 (2007) (“Web 2.0 is the network as platform, spanning all connected devices; Web 2.0 applications are those that make the most of the intrinsic advantages of that platform: delivering software as a continually-updated service that gets better the more people use it, consuming and remixing data from multiple sources, including individual users, while providing their own data and services in a form that allows remixing by others, creating network effects through an ‘architecture of participation,’ and going beyond the page metaphor of Web 1.0 to deliver rich user experiences.”).

51 See generally Donald Arthur Norman, Affordances, Conventions and Design, 6 Interactions 38 (1999); James J. Gibson, The Theory of Affordances, in Perceiving, Acting, and Knowing: Toward an Ecological Psychology 67 (Robert Shaw & John Bransford eds., 1977).

52 Lincoln Dahlberg, Re-Constructing Digital Democracy: An Outline of Four ‘Positions,’ 13 New Media & Soc’y 855, 860 (2011).

53 David Hesmondhalgh, The Cultural Industries 263 (4th ed. 2019). Hesmondhalgh uses the term “digital optimists” to refer to scholars that “overstat[e] the impact and potential of new communication technologies” and are often “blind … to potential dangers, problems and abuses.” Id. at 263.

54 See id. at 273–90. Although Hesmondhalgh does not use the term “digital pessimist,” this term has often been used in the literature to describe the opposing side of digital optimism. See, e.g., Tatiana Leshkevich & Anna Motazhanets, Digital Determination and Manipulative Strategies, 329 Advances Soc. Sci. Educ. & Humans. Rsch. 1160, 1660 (2019). Digital pessimists refer to scholars that “emphasize the negative effects of digitalization and hidden manipulative strategies.” Id.; see also Anka Mihajlov Projopović, Media and Technology: Digital Optimists and Digital Pessimists, 16 Phil., Socio. Psych. & Hist. 117, 118–20 (2017).

55 Hesmondhalgh, supra note 53, at 264.

56 In the twentieth century, the term “information economy” was coined to describe the economics of the commercialized production and distribution of mass media. Yokai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom 31 (2006). Advances in technologies such as the radio and television allowed in part for the commercialization of the production and exchange of information. Id. at 29. As a result, commercial and professional producers were largely responsible for the production of culture, knowledge, and information. Id. at 30. In his book, Professor Yochai Benkler refers to this period as the “industrial information economy” due to the period’s focus on “capital-intensive production and distribution techniques.” Id. at 32.

57 Id. at 32–33.

58 David Hesmondhalgh argues that attributing changes to our cultural industries as entirely a result of technological advances reduces the complexity of additional factors, such as political and economic factors. See Hesmondhalgh, supra note 53, at 110–31.

59 See Benkler, supra note 56, at 32.

60 Sophie Altrock & Ayoung Suh, Sharing Economy Versus Access Economy: A Critical Reflection on Social Interaction Between Peers, in HCI in Business, Government and Organizations 3, 3 (Fiona Fui-Hoon Nah & Chuan-Hoo Tan eds., 2017). Although mainly grounded in economic theory and business justifications, the sharing economy relies on the social interaction and communication between peers. Id. at 4. By allowing these interactions to happen virtually, the creation of Web 2.0 and rise of social media platforms facilitated the growth of a sharing economy. See id. at 3. The same concept applies in theories of communication.

61 See id. at 52.

62 See Litman, supra note 14, at 2; see also Pamela Samuelson, Digital Information, Digital Networks & The Public Domain, in Duke Univ. L. Sch., Conference on the Public Domain 80, 85 (2021).

63 Richard A. Peterson & Anand Narasimhan, The Production of Culture Perspective, 30 Ann. Rev. Socio. 311, 314 (2004).

64 Benkler defines “commons-based peer production” as a “new modality of organizing production” that is “radically decentralized, collaborative, and nonproprietary; based on sharing resources and outputs among widely distributed, loosely connected individuals who cooperate with each other without relying on either market signals or managerial commands.” Benkler, supra note 56, at 60. Benkler refers to “commons” as “a particular institutional form of structuring the rights to access, use, and control resources.” Id. According to Benkler, peer production refers to “production systems that depend on individual action that is self-selected and decentralized, rather than hierarchically assigned.” Id. at 62.

65 Id. at 56.

66 Litman, supra note 14, at 8.

67 Id.

68 The word “platform” has been used in a multitude of ways in scholarly literature; see, for example, Tarleton Gillespie, The Politics of ‘Platforms,’ 12 New Media & Soc’y 347 (2010) (discussing four “semantic” territories in which the word platform has taken a different meaning). Professor Julie Cohen refers to a platform as “a site of encounter where interactions are materially and algorithmically intermediated,” including both economic and social or cultural activity. Julie E. Cohen, Law for the Platform Economy, 51 U.C. Davis L. Rev. 133, 136 (2017).

69 See Hesmondhalgh, supra note 53, at 274.

70 Philip Napoli, Social Media and the Public Interest: Media Regulation in the Disinformation Age 8 (2018).

71 Cohen, supra note 68, at 135.

72 Id. at 143.

73 Id. at 145; see also Tarleton Gillespie, The Politics of ‘Platforms,’ 12 New Media & Soc’y 347 (2010).

74 José Van Dijck, The Culture of Connectivity: A Critical History of Social Media 8 (2013).

75 See id. at 35.

76 Henry Fraser, The Disappointments of Networks, 19 Chi.-Kent J. Intell. Prop. 1, 66 (2020) (noting that the benefits of a networked information economy are “qualified and contingent”).

77 Id. at 6.

78 See Janna Anderson & Lee Rainie, The Future of Truth and Misinformation Online, Pew Rsch. Ctr. (Oct. 19, 2017), https://www.pewresearch.org/internet/2017/10/19/the-future-of-truth-and-misinformation-online/.

79 Hesmondhalgh, supra note 53, at 274. Specifically, Hesmondhalgh focuses on six issues: (1) unequal access and skill, (2) concentration of power and circulation, (3) commercialization and advertising, (4) surveillance and datafication, (5) free or unpaid labor, and (6) information technology (IT) giants. Id.

80 Id. at 274–75. Hesmondhalgh argued that there is a “digital divide” relating to different skills, confidence, and motivations between users to make use of new technologies.

81 See, e.g., Fraser, supra note 76, at 6.

82 Id.

83 Hesmondhalgh, supra note 53, at 276.

84 Anthony Cuthbertson, Who Controls the Internet? Facebook and Google Dominance Could Cause the “Death of the Web,” Newsweek (Nov. 2, 2017, 9:45 AM) https://www.newsweek.com/facebook-google-internet-traffic-net-neutrality-monopoly-699286.

85 See, e.g., Nicholas Confessore, Cambridge Analytica and Facebook: The Scandal and the Fallout So Far, N.Y. Times (Apr. 4, 2018), https://www.nytimes.com/2018/04/04/us/politics/cambridge-analytica-scandal-fallout.html.

86 Hesmondhalgh, supra note 53, at 282.

87 See, e.g., Fraser, supra note 76, at 12.

88 See Litman, supra note 14, at 12 (“What makes this economy so astonishingly useful is information sharing.”).

89 See, e.g., Benkler, supra note 56, at 92, 115.

90 For example, as the scholarship by Julie Cohen proposes, no individual is exclusively an author or consumer of creative works. Julie E. Cohen, Configuring the Networked Self: Law, Code, and the Play of Everyday Practice 69, 84 (2012). Instead, creativity and authorship are a result of the interplay between being a user/consumer of cultural works and an author.

91 Madhavi Sunder, From Goods to a Good Life: Intellectual Property and Global Justice 64 (2012).

92 See Benkler, supra note 56, at 2 (“This new freedom holds great practical promise: as a dimension of individual freedom; as a platform for better democratic participation; as a medium to foster a more critical and self-reflective culture; and, in an increasingly information-dependent global economy, as a mechanism to achieve improvements in human development everywhere.”). As discussed by Professor Jack Balkin, democratic culture refers to the freedom to engage in cultural production and participation. Jack M. Balkin, Cultural Democracy and the First Amendment, 110 Nw. U. L. Rev. 1053, 1060 (2016). Balkin notes that cultural democracy is as important to a free society as democratic self-governance, especially in the digital age. Id.

93 As Balkin notes, the networked information economy advances cultural democracy because its “arrangement of cultural power and production” allows for “a vast number of people [to] participate in the production and alteration of culture.” Balkin, supra note 92, at 1055, 1060.

94 Id. at 1060.

95 Lawrence Lessig, Code and Other Laws of Cyberspace, Version 2.0, at 123 (2d ed. 2006). We acknowledge that these constraints do not operate independently; however, laws and architecture are most relevant to this article.

96 Id. at 124.

97 Id. at 125. Architecture relates to the “the software and hardware that make cyberspace what it is.” Id. at 124.

98 See id. at 124–35. One example of a change in the law affecting other constraints in cyberspace is the response from social media platforms to the enactment of the Stop Enabling Sex Traffickers Act and Allow States and Victims to Fight Online Sex Trafficking Act (“SESTA/FOSTA”). Passed as an amendment to Section 230 of the Communications Decency Act, SESTA/FOSTA promised to address online sex trafficking by creating liability for online platforms. Act of April 11, 2018, Pub. L. No. 115-164, 132 Stat. 1253. Immediately after the SESTA/FOSTA passage, numerous websites censored and banned parts of their platforms, shutting down popular tools sex workers use to conduct business. Evan Greer, Want To Fix Big Tech? Stop Ignoring Sex Workers, Daily Beast (Mar. 24, 2022, 4:48 AM), https://www.thedailybeast.com/want-to-fix-big-tech-stop-ignoring-sex-workers. Although SESTA/FOSTA simply amended § 230 so that its safe harbor would have no effect on sex trafficking laws, platforms proactively began censoring and deleting content in response to the bill. Aja Romano, A New Law Intended To Curb Sex Trafficking Threatens the Future of the Internet as We Know It, Vox, https://www.vox.com/culture/2018/4/13/17172762/fosta-sesta-backpage-230-internet-freedom (July 8, 2018, 1:08 PM).

99 Jon Porter, Twitter Change Leaves Huge Gaps in Websites, Verge (Apr. 6, 2022, 7:18 AM), https://www.theverge.com/2022/4/6/23012913/twitter-tweet-embeds-deleted-tweets-empty-iframe-broken.

100 Id.

101 John Martin, Twitter Removing Embeds of Deleted Tweets May Threaten Journalism, iTechPost (Apr. 7, 2022), https://www.itechpost.com/articles/109896/20220407/twitter-removing-embeds-deleted-tweets-threatens-journalism.htm.

102 Ryne Hager, Twitter’s Changes to Embedded Tweets Are Putting Its News Reputation at Risk, Android Police (Apr. 6, 2022), https://www.androidpolice.com/twitter-delete-tweet-embeds.

103 Mike Masnick (@mmasnick), Twitter (Apr. 6, 2022, 2:40 PM), https://twitter.com/mmasnick/status/1511775764881977349. If reporters take screenshots of tweets rather than embed them, they would be making a copy of the tweet, subjecting them to potential copyright infringement claims if any of the content in the tweet is protected by copyright.

104 A screenshot makes a “copy” whereas embedding does not. Making a copy risks infringing the exclusive right to reproduce copyrighted works.

105 Hesmondhalgh, supra note 53, at 164–65.

106 Jaron Schneider, Instagram Users Can Now Prevent Others from Embedding Their Photos, PetaPixel (Dec. 17, 2021), https://petapixel.com/2021/12/17/instagram-users-can-now-prevent-others-from-embedding-their-photos.

107 McGucken I, 464 F. Supp. 3d 594, 599 (S.D.N.Y. 2020); Walsh v. Townsquare Media, Inc., 464 F. Supp. 3d 570, 570 (S.D.N.Y. 2020).

108 Using a combination of searches in Thomson Reuter’s Westlaw Edge, Lexis + database, and secondary sources, we identified the following ten cases to be studied: (1) Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007); (2) Flava Works, Inc. v. Gunter, 689 F.3d 754 (7th Cir. 2012); (3) Leader’s Inst., LLC v. Jackson, No. 14-CV-3572-B, 2017 WL 5629514 (N.D. Tex. Nov. 22, 2017); (4) Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585 (S.D.N.Y. 2018); (5) Walsh v. Townsquare Media, Inc., 464 F. Supp. 3d 570 (S.D.N.Y. 2020); (6) McGucken I, 464 F. Supp. 3d 594 (S.D.N.Y. 2020) and McGucken III, No. 19-cv-09617, 2022 WL 836786 (S.D.N.Y. Mar. 21, 2022); (7) Sinclair v. Ziff Davis, LLC, 454 F. Supp. 3d 342 (S.D.N.Y. 2020), adhered to in part on reconsideration, 2020 WL 3450136 (S.D.N.Y. June 24, 2020); (8) Boesen v. United Sports Publications, Ltd., No. 20-CV-1552, 2020 WL 6393010 (E.D.N.Y. Nov. 2, 2020); (9) Nicklen v. Sinclair Broadcast Group, Inc., 551 F. Supp. 3d 188 (S.D.N.Y. 2021); and (10) Hunley v. Instagram, LLC, No. 21-cv-03778-CRB, 2021 WL 4243385 (N.D. Cal. Sept. 17, 2021). For the purposes of this article, we are treating McGucken I and McGucken III as a single case because both opinions considered the same operative facts and subject matter but were issued at different stages of litigation (motion to dismiss and motion to summary judgment).

109 As noted above, for the decade following the decision in Perfect 10, almost all courts that considered content-sharing practices similar to embedding in the context of the display right adopted the server test. See supra, note 21.

110 508 F.3d 1146, 1155 (9th Cir. 2007).

111 Id.

112 As recently as September 2021, one other case expressly considered the applicability of the server test to embedding photos and videos. In Hunley v. Instagram, No. 21-cv-03778-CRB, 2021 WL 4243385 (N.D. Cal. Sept. 17, 2021), the Northern District of California considered whether the server test applied to the plaintiff’s claim of secondary liability for copyright infringement arising out of embedding copyrighted content. Id. at *1–2. Because the Northern District of California is in the Ninth Circuit, it must apply Perfect10 “absent a contrary Ninth Circuit or Supreme Court ruling.” Id. at *2. The plaintiffs in Hunley asserted that the Supreme Court’s decision in American Broadcasting Cos. v. Aereo, Inc. was irreconcilable with Perfect10. Id. The court rejected this argument, noting that Aereo dealt with the performance right and not the display right. Id. at *2–3. Accordingly, the district court applied the server test and found embedding did not violate the display right. Id. at *2. Hunley is currently on appeal in the Ninth Circuit.

113 Jackson, 2017 WL 5629514, at *10 (“And to the extent Perfect 10 makes actual possession of a copy a necessary condition to violating a copyright owner’s exclusive right to display her copyrighted works, the Court respectfully disagrees with the Ninth Circuit.”).

114 Goldman, 302 F. Supp. 3d at 596 (“In sum, the Court here does not apply the Server Test. It is neither appropriate to the specific facts of this case, nor, this Court believes, adequately grounded in the text of the Copyright Act. It therefore does not and should not control the outcome here.”).

115 Id. at 593–95. Plaintiff in this case, Justin Goldman, took a photograph of Tom Brady and uploaded it to his Snapchat Story. Id. at 586. The photo went viral and several users uploaded it to Twitter. Id. at 587. Defendants were online news outlets who embedded the photo alongside an article about whether Tom Brady would help the Boston Celtics recruit basketball player Kevin Durant. Id.

116 Nicklen, 551 F. Supp. 3d at 195 (“The server rule is contrary to the text and legislative history of the Copyright Act.… Thus, Perfect 10’s test is a poor fit for this case, and the Court declines to adopt it.”). The plaintiff in Nicklen was a photographer and filmmaker who filmed a video of an emaciated polar bear in the Canadian Arctic. Id. at 192. The plaintiff posted the video to his Instagram and Facebook accounts. Id. The defendant, Sinclair Broadcast Group, published an article titled “starving polar bear goes viral in heartbreaking video” and embedded the plaintiff’s video to the article. Id. The plaintiff sued the defendants, alleging they infringed on his reproduction, distribution, and display rights by embedding his video. Id. at 193.

117 McGucken III, No. 19-cv-09617, 2022 WL 836786, at *6 (S.D.N.Y. Mar. 21, 2022) (“In support of this argument, Defendant relies on the ‘server test’ established by the Ninth Circuit.… The [District] Court rejects Defendant’s argument.”).

118 Jackson, 2017 WL 5629514, at *11; Goldman, 302 F. Supp. 3d at 589; Nicklen, 551 F. Supp. at 193–94; McGucken III, 2022 WL 836786, at *6.

119 For the definition of display under the Copyright Act, see 17 U.S.C. § 101. Judge Rakoff then coupled this definition with Merriam-Webster’s definition of “to show”—“to cause or permit to be seen.” Nicklen, 551 F. Supp. at 194 (quoting Show, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/show (last visited Feb. 7, 2023)).

120 Nicklen, 551 F. Supp. at 194.

121 Goldman, 302 F. Supp. 3d at 589 (quoting 17 U.S.C. § 101).

122 Jackson, 2017 WL 5629514, at *10 (internal quotations and citation omitted).

123 Goldman, 302 F. Supp. 3d at 589; Nicklen, 551 F. Supp. at 194; McGucken III, 2022 WL 836786, at *6; see also H.R. Rep. 94-1476, 47 (1976).

124 See Goldman, 302 F. Supp. 3d at 589 (citing H.R. Rep. 94-1476, 47, 64 (1976)).

125 H.R. Rep. 94-1476, 47, 80 (1976) (“‘display’ would include the projection of an image on a screen or other surface by any method, the transmission of an image by electronic or other means, and the showing of an image on a cathode ray tube, or similar viewing apparatus connected with any sort of information storage and retrieval system”).

126 Nicklen, 551 F. Supp. at 194 (emphasis in the original).

127 McGucken III, 2022 WL 836786, at *6 (quoting H.R. Rep. 94-1476, 47, 51 (1976)).

128 H.R. Rep. 94-1476, 47, 80 (1976) (emphasis added).

129 Goldman, 302 F. Supp. 3d at 589 (citing H. Comm. on the Judiciary, 89th Cong., Copyright Law Revision Part 6: Supplementary Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law: 1965 Revision Bill 25 (Comm. Print. 1965)).

130 Nicklen, 551 F. Supp. at 194; Goldman, 302 F. Supp. 3d at 594; McGucken III, 2022 WL 836786, at *6.

131 Leader’s Institute, LLC v. Jackson, No. 14-CV-3572-B, 2017 WL 5629514, at *11 (N.D. Tex. Nov. 22, 2017) (internal citations omitted).

132 Id.

133 Nicklen, 551 F. Supp. at 195 (citation omitted).

134 Id.

135 Goldman, 302 F. Supp. 3d at 593.

136 573 U.S. 431, 442–44 (2014) (holding that a provider of broadcast television programming streamed over the Internet “performed” copyrighted content even though the technology operated based on the user’s choice).

137 Goldman, 302 F. Supp. 3d at 595.

138 Id. at 594 (noting that since the Copyright Act defines display as showing a copy through “any device or process,” embedding constitutes a process through which someone displays content); Nicklen, 551 F. Supp. at 194 (noting that an embed code, or HTML instructions, is simply “an information retrieval system” that “falls square within the display right” because it allows a work to be seen).

139 Goldman, 302 F. Supp. 3d at 594–96; Nicklen, 551 F. Supp. at 195.

140 Goldman, 302 F. Supp. 3d at 595–96.

141 Id.; Nicklen, 551 F. Supp. at 195.

142 Goldman, 302 F. Supp. 3d at 594–96; Nicklen, 551 F. Supp. at 195.

143 Goldman, 302 F. Supp. 3d at 596; Nicklen, 551 F. Supp. at 195; see also Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1161 n.7 (9th Cir. 2007).

144 Goldman, 302 F. Supp. 3d at 595–96.

145 Nicklen, 551 F. Supp. at 195.

146 Leader’s Institute, LLC v. Jackson, No. 14-CV-3572-B, 2017 WL 5629514, at *11 (N.D. Tex. Nov. 22, 2017) (internal citation omitted).

147 Id.

148 See id.

149 17 U.S.C. § 101.

150 See, e.g., Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828, 839 (C.D. Cal. 2006), aff’d in part, rev’d in part sub nom. Perfect 10, Inc. v. Amazon.com, 508 F.3d 1146 (9th Cir. 2007); Daniel Reinke, Note, The Incorporation Test: Putting the Public Display Right Back Online, 47 AIPLA Q.J. 579, 590 (2019).

151 See supra notes 117–18 and accompanying text.

152 Michael P. Goodyear, The Server Test Quandary and Embedding Permission Culture, 75 Okla. L. Rev. 263, 288 (2023).

153 Reinke, supra note 150, at 595 (“However, by requiring possession on the defendant’s server of the infringing work, the server test violates this canon of construction and conflates the public display right with several other exclusive rights which do require possession such as the distribution, reproduction, or public performance rights.”).

154 Perfect 10, 508 F.3d at 1161 (“Nor does our ruling that a computer owner does not display a copy of an image when it communicates only the HTML address of the copy erroneously collapse the display right in section 106(5) into the reproduction right set forth in section 106(1). Nothing in the Copyright Act prevents the various rights protected in section 106 from overlapping.”).

155 Ginsburg & Budiardjo, supra note 9, at 443.

156 Id.

157 Id. at 444 (“One might define a ‘share’ or a ‘retweet’ as a retransmission of the original user’s post—the sharing user essentially ‘amplif[ies]’ the initial broadcast by pushing the content out to an additional class of social media users. And the Supreme Court’s decision in American Broadcasting Companies v. Aereo clearly indicates that the amplification of a preexisting broadcast constitutes an act of ‘performance.’” (citing 573 U.S. 431, 438–43 (2014)).

158 Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585, 596 (S.D.N.Y. 2018) (“The Court does not view the results of its decision as having such dire consequences.”); Nicklen v. Sinclair Broad. Grp., Inc., 551 F. Supp. 188, 195 (S.D.N.Y. 2021) (“Proponents of the server rule suggest that a contrary rule would impose far-reaching and ruinous liability, supposedly grinding the internet to a halt. These speculations seem farfetched, but are, in any case, just speculations.”).

159 Goldman, 302 F. Supp. 3d at 596.

160 See McGucken I, 464 F. Supp. 3d 594, 604 (S.D.N.Y. 2020) (noting that the defendant argued its use of the photograph was fair); Goldman, 302 F. Supp. 3d at 596 (“There is also a very serious and strong fair use defense . . . .”).

161 17 U.S.C. § 107.

162 See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994) (“The fair use doctrine thus ‘permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.’” (citing Stewart v. Abend, 495 U.S. 207, 236 (1990)).

163 17 U.S.C. § 107.

164 Campbell, 510 U.S. at 578.

165 See Amanda Reid, Deciding Fair Use, 2019 Mich. St. L. Rev. 601, 623 (discussing that fair use is a case-by-case determination and a mixed question of law and fact).

166 551 F. Supp. 188 (S.D.N.Y. 2021). For the facts of Nicklen, see supra note 116.

167 464 F. Supp. 3d 594 (S.D.N.Y. 2020). For the facts of McGucken, see supra notes 1–4 and accompanying text.

168 464 F. Supp. 3d 570 (S.D.N.Y. 2020). In Walsh v. Townsquare Media, Inc., the plaintiff was a professional photographer who photographed Cardi B and then made the photos available for license. Id. at 575. The defendant operated XXL Mag, an online website. Id. The defendant published an article titled “Cardi B Partners with Tom Ford for New Lipstick Shade” and embedded Cardi B’s Instagram post, which included a composite image of the Tom Ford Lipstick and the plaintiff’s photograph. Id. at 577. The article described Tom Ford’s decision to name a lipstick shade after Cardi B and the “heated debate” in the Instagram announcement. Id. at 576–77. The photographer sued the publisher of the online article for infringement arising out of the unauthorized embedding of the photographer’s photo. Id. at 570.

169 No. 20-CV-1552, 2020 WL 6393010 (E.D.N.Y. Nov. 2, 2020). In Boesen v. United Sports Publications, Ltd., professional tennis player Caroline Wozniacki announced her retirement through an Instagram post of a photo of herself taken by the plaintiff, Michael Boesen. Id. at *1. The defendant, United Sports Publications, Ltd., published an article reporting on Wozniacki’s retirement announcement with an embedded picture of her Instagram post. Id. at *1–2. Boesen filed a lawsuit claiming infringement of her reproduction and display rights. Id. at *2.

170 Nicklen, 551 F. Supp. at 198 (“The Sinclair Defendants’ fair use affirmative defense cannot be resolved at this stage…  [T]he Court’s fair use analysis would benefit from a better-developed factual record”).

171 McGucken I, 464 F. Supp. 3d at 609 (“In sum, the Court finds that the first and fourth factors favor Plaintiff, while the second and third factors are neutral. Under these circumstances, it is not possible for the Court to conclude that Defendant’s use of the Photograph was fair as a matter of law. Accordingly, Defendant’s motion to dismiss based on its alleged fair use of the Photograph is denied”); cf. McGucken III, No. 19-cv-0917, 2022 WL 836786, at *9 (S.D.N.Y. Mar. 21, 2022) (“The issue of fair use was discussed at length in McGucken I. Much of the analysis in the Court’s prior opinion remains applicable and leads the Court to conclude that it is unable to determine as a matter of law that Defendant’s use of the Photograph did, or did not, constitute fair use”).

172 17 U.S.C. § 107(1).

173 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).

174 Id.

175 Id.

176 Nicklen v. Sinclair Broad. Grp., Inc., 551 F. Supp. 188, 197 (S.D.N.Y. 2021); Walsh v. Townsquare Media, Inc., 464 F. Supp. 3d 570, 581–82 (S.D.N.Y. 2020); Boesen v. United Sports Publ’ns, LTD, No. 20-CV-1552, 2020 WL 6393010, at *4 (E.D.N.Y. Nov. 2, 2020); McGucken I, 464 F. Supp. 3d at 606.

177 Nicklen, 551 F. Supp. at 197.

178 McGucken I, 464 F. Supp. 3d at 606.

179 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).

180 Marta Rocha, Note, The Brewing Battle: Copyright vs. Linking, 35 Berkeley Tech. L.J. 1179, 1189 (2020).

181 17 U.S.C. § 107(2).

182 Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 563–64 (1985).

183 Id.

184 See Walsh v. Townsquare Media, Inc., 464 F. Supp. 3d 570, 585 (S.D.N.Y. 2020); Boesen v. United Sports Publ’ns, LTD, No. 20-CV-1552, 2020 WL 6393010, at *5 (E.D.N.Y. Nov. 2, 2020).

185 McGucken I, 464 F. Supp. 3d at 608.

186 See Jonathan Bailey, Is Your Website Published or Unpublished?, Plagiarism Today (Apr. 7, 2022) https://www.plagiarismtoday.com/2022/04/07/is-your-website-published-or-unpublished (“if you post your work to a web page with social media buttons, an open license or even just tools to aid in printing or emailing, the work is likely considered to be published”); cf. Deborah R. Gerhardt, Copyright Publication on the Internet, 60 IDEA 1 (2020) (discussing when Internet distribution constitutes publication).

187 17 U.S.C. § 107(3).

188 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586 (1994) (quoting Folsom v. Marsh, 9 F. Cas. 342, 348 (C.C.D. Mass. 1841) (No. 4,901)).

189 Cariou v. Prince, 714 F.3d 694, 710 (2d Cir. 2013).

190 Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 96 (2d Cir. 2014) (“The third factor asks whether the secondary use employs more of the copyrighted work than is necessary, and whether the copying was excessive in relation to any valid purposes asserted under the first factor.”).

191 Walsh v. Townsquare Media, Inc., 464 F. Supp. 3d 570, 586 (S.D.N.Y. 2020); Boesen v. United Sports Publ’ns, LTD, No. 20-CV-1552, 2020 WL 6393010, at *6 (E.D.N.Y. Nov. 2, 2020).

192 McGucken I, 464 F. Supp. 3d 594, 608 (S.D.N.Y. 2020).

193 Nicklen v. Sinclair Broad. Grp., Inc., 551 F. Supp. 188, 197–98 (S.D.N.Y. 2021).

194 Id.

195 Id.

196 Id.

197 Id.

198 McGucken I, 464 F. Supp. 3d 594, 608 (S.D.N.Y. 2020).

199 Id.

200 Walsh v. Townsquare Media, Inc., 464 F. Supp. 3d 570, 586 (S.D.N.Y. 2020).

201 Id.

202 Boesen v. United Sports Publ’ns, LTD, No. 20-CV-1552, 2020 WL 6393010, at *6 (E.D.N.Y. Nov. 2, 2020).

203 Id.

204 Id.

205 17 U.S.C. § 107(4).

206 Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 566 (1985).

207 Sony Corps. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 451 (1984) (“A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work.”); Harper, 471 U.S. at 568 (“This inquiry must take account not only of harm to the original but also of harm to the market for derivative works.”).

208 Sony, 464 U.S. at 451 (“[A] although every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright, noncommercial uses are a different matter.… If the intended use is for commercial gain, that likelihood may be presumed. But if it is for a noncommercial purpose, the likelihood must be demonstrated.”).

209 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 591 (1994) (“No ‘presumption’ or inference of market harm that might find support in Sony is applicable to a case involving something beyond mere duplication for commercial purposes.”).

210 Id. (“But when, on the contrary, the second use is transformative, market substitution is at least less certain, and market harm may not be so readily inferred.”).

211 See McGucken I, 464 F. Supp. 3d 594, 609 (S.D.N.Y. 2020).

212 Nicklen v. Sinclair Broad. Grp., Inc., 551 F. Supp. 188, 198 (S.D.N.Y. 2021).

213 Walsh v. Townsquare Media, Inc., 464 F. Supp. 3d 570, 586 (S.D.N.Y. 2020).

214 Boesen v. United Sports Publ’ns, LTD, No. 20-CV-1552, 2020 WL 6393010, at *6 (E.D.N.Y. Nov. 2, 2020).

215 See Nicklen v. Sinclair Broad. Grp., Inc., 551 F. Supp. 188, 198 (S.D.N.Y. 2021).

216 Campbell, 510 U.S. at 578.

217 Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984).

218 Walsh v. Townsquare Media, Inc., 464 F. Supp. 3d 570, 586 (S.D.N.Y. 2020); Boesen v. United Sports Publ’ns, LTD, No. 20-CV-1552, 2020 WL 6393010, at *6 (E.D.N.Y. Nov. 2, 2020).

219 See supra tbl. 1.

220 Two courts, in Nicklen and McGucken I, left the matter unresolved because of the cases’ procedural posture. Both Nicklen and McGucken I were decided on defendants’ motion to dismiss. McGucken I, 464 F. Supp. 3d at 602; Nicklen, 551 F. Supp. at 193. Because fair use is a “mixed question of law and fact,” Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 561 (1985), courts have determined, as a matter of law, whether a use was fair in a motion to dismiss if “discovery would not provide any additional relevant information’ and ‘[a]ll that is necessary for the court to make a determination as to fair use are the two [works] at issue.’” May v. Sony Music Entert., 399 F. Supp. 3d 169, 188 (S.D.N.Y. 2019) (quoting Arrow Prods., Ltd. v. Weinstein Co., 44 F. Supp. 3d 359, 368 (S.D.N.Y 2014)). It is thus more common for fair use inquiries to be resolved at the summary judgement stage, rather than on a motion to dismiss. See, e.g., TCA Television Corp. v. McCollum, 839 F.3d 168, 178 (2d Cir. 2016) (“Courts most frequently address a proffered fair use defense at summary judgment.”). Accordingly, the Nicklen court noted that “the Court’s fair use analysis would benefit from a better-developed factual record” and concluded it could not resolve the issue on a motion to dismiss. Nicklen, 551 F. Supp. at 199. Similarly, the court in McGucken I found it was “not possible,” in the motion to dismiss stage, for the court to find the use was fair as a matter of law. McGucken I, 464 F. Supp. 3d at 609. In McGucken III, the district court reconsidered the issue of fair use on a motion for summary judgment, but again concluded it could not find the use was fair as a matter of law because of unresolved factual questions. McGucken III, No. 19-cv-09617, 2022 WL 836786, at *9–13 (S.D.N.Y. Mar. 21, 2022).

221 See supra tbl. 1.

222 See generally Matthew Sag, Predicting Fair Use, 73 Ohio St. L.J. 47 (2015); Pamela Samuelson, Unbundling Fair Uses, 77 Fordham L. Rev. 2537 (2009); Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978–2005, 156 U. Pa. L. Rev. 549 (2008).

223 For example, the company Printful refused a customer’s design due to its “resemblance” to the Lay’s logo, noting:

We understand that this is a custom-made design, and you have intended it to fall under the fair use/parody laws, however, the design may not avoid infringement because of the close resemblance of the Lay’s logo. Typically whether this sort of content falls under the fair use policy or parody laws can be determined in court. This may pose a risk for us as a business which we would like to avoid and which is why we have refused to print this design.

Aram Sinnreich (@aram), Twitter (Jan. 12, 2022, 11:00 AM), https://twitter.com/aram/status/1481295051917443077.

224 Act of Oct. 19, 1976, Pub. L. No. 94-553, § 102, 90 Stat. 2541, 2598.

225 17 U.S.C. § 201(d).

226 Sinclair v. Ziff Davis, LLC, 454 F. Supp. 3d 342, 344 (S.D.N.Y. 2020).

227 See Litman, supra note 14, at 18.

228 Id.

229 See id. at 21.

230 For the purposes of this article, a platform “user agreement” includes not only the platform’s terms of service, but also the policies or guidelines that regulate user behavior, such as the terms of service/use agreement, community standards, privacy policy, and any additional policies that are incorporated through the service/use agreement. Put simply, the user agreement sets out the rules of the social media game—it is a contract establishing the terms, conditions, and obligations to which platform users are required to agree when using the platform, including terms addressing liability and intellectual property. Tarleton Gillespie, Custodians of the Internet: Platforms, Content Moderation, and the Hidden Decisions that Shape Social Media 46 (2018).

231 Batya Goodman, Note, Honey, I Shrink-Wrapped the Consumer: The Shrink-Wrap Agreement as an Adhesion Contract, 21 Cardozo L. Rev. 319, 321 (1999); see also Michael Karanicolas, Too Long; Didn’t Read: Finding Meaning in Platforms’ Terms of Service Agreements, 52 U. Toledo L. Rev. 1, 10–12 (2021).

232 See, e.g., Hancock v. Am. Tel. & Tel. Co., 701 F.3d 1248, 1256 (10th Cir. 2012) (“Courts evaluate whether a clickwrap agreement’s terms were clearly presented to the consumer, the consumer had an opportunity to read the agreement, and the consumer manifested an unambiguous acceptance of the terms.”); Specht v. Netscape Comms. Corp., 306 F.3d 17, 29–30 (2d Cir. 2002) (“[A] consumer’s clicking on a download button does not communicate assent to contractual terms if the offer did not make clear to the consumer that clicking on the download button would signify assent to those terms.”). For a more detailed discussion on courts’ treatment of the enforceability of clickwrap, browsewrap, and hybridwrap licenses, see generally Matt Meinel, Recent Development, Requiring Mutual Assent in the 21st Century: How to Modify Wrap Contracts to Reflect Consumer’s Reality, 18 N.C. J.L. & Tech. 180, 187–88 (2016).

233 Jonathan A. Obar & Lior Magalashvili, The Clickwrap as Platform Governance: Assessing the Frequency of Manipulative Interface Designs During Digital Service Sign-Up 2 (Aug. 2, 2021) (unpublished paper), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3898254.

234 Jonathan A. Obar & Anne Oeldorf-Hirsch, The Clickwrap: A Political Economic Mechanism for Manufacturing Consent on Social Media, 2018 Social Media + Soc’y 1, 1.

235 See, e.g., Melissa de Zwart, Contractual Communities: Effective Governance of Virtual Worlds, 33 U. S. Wales L. J. 605, 625 (2010) (encouraging platforms to clearly identify any “relevant intellectual property rights and the contractual allocation of those rights between platform providers and users” in their user agreement to ensure platforms “revert to code to enforce their control”); Casey Fiesler, Cliff Lampe, & Amy S. Bruckman, Reality and Perception of Copyright Terms of Service for Online Content Creation, Conf. on Comput.-Supported Coop. Work & Soc. Computing, Feb. 2016, at 1459 (suggesting websites should consider the particular need of their users and employ “an understanding of not only what the term means but what the site actually means to do” with users’ content); Woodrow Hartzog, Website Design as Contract, 60 Am. U. L. Rev. 1635, 1638–39 (2011) (proposing that website design should be considered enforceable promises in addition to a website’s user agreement).

236 See Sinclair v. Ziff Davis, LLC, 454 F. Supp. 3d 342 (S.D.N.Y. 2020).

237 In assessing the user agreements, we employed a latent content analysis. A latent content analysis “refers to the process of interpretation of content” and “discovering underlying meanings of the words or the content.” Hsiu-Fang Hsieh & Sarah E. Shannon, Three Approaches to Qualitative Content Analysis, 15 Qualitative Health Rsch. 1277, 1284–86 (2005).

238 To identify the platforms that were to be the focus of this article, we cross-referenced Statistica’s global listing of the most popular social media platforms based on active user accounts and the Pew Research Center’s report on the most common social media platforms reported by American adults. See Most Popular Social Networks Worldwide as of October 2021, Ranked by Number of Active Users, Statistica (Oct. 2021), https://www.statista.com/statistics/272014/global-social-networks-ranked-by-number-of-users; Social Media Fact Sheet, Pew Rsch. Ctr. (Apr. 7, 2021), https://www.pewresearch.org/internet/fact-sheet/social-media/#which-social-media-platforms-are-most-common?menuItem=b14b718d-7ab6-46f4-b447-0abd510f4180.

239 For example, Facebook’s terms of service state the following: “You may not use our Products to do or share anything [t]hat violates these Terms, our Community Standards, and other terms and policies that apply to your use of our products.” Terms of Service, Facebook (Jan. 4, 2022), https://www.facebook.com/terms.php.

240 See, e.g., Tillery v. D.C. Contract Appeals Bd., 912 A.2d 1169, 1176 (D.C. 2006) (“The proper interpretation of a contract, including whether a contract is ambiguous, is a legal question.… In determining whether a contract is ambiguous, we examine the document on its face, giving the language used its plain meaning.”); Charles L. Knapp, Nathan M. Crystal & Harry G. Prince, Problems in Contract Law: Cases and Materials 398 (8th ed. 2016) (“Courts often state that the ‘plain meaning’ of the language of a contract should govern and that extrinsic evidence is admissible only if the court concludes that the contract is ambiguous.”).

241 Licensing of Intellectual Property § 1A.01 (2022).

242 Id.

243 Compare Terms of Service, YouTube (Jan. 5, 2022), https://www.youtube.com/static?template=terms, and Terms of Service, TikTok (Feb. 2019), https://www.tiktok.com/legal/page/us/terms-of-service/en, and Terms of Service, Facebook (Jan. 4, 2022), https://www.facebook.com/terms.php, and Twitter Terms of Service, Twitter (June 10, 2022), https://twitter.com/en/tos, and Terms of Use, Instagram (Jan. 4, 2022), https://help.instagram.com/581066165581870, with Terms of Service, Pinterest (May 1, 2018), https://policy.pinterest.com/en/terms-of-service.

244 Terms of Service, Facebook, supra note 243; Twitter Terms of Service, Twitter, supra note 243; Terms of Service, TikTok, supra note 243; Terms of Use, Instagram, supra note 243; Terms of Service, YouTube, supra note 243; Terms of Service, Pinterest, supra note 243.

245 This article did not take into consideration the exclusive right granted to copyright holders under 17 U.S.C. § 106(6). When the 1976 Copyright Act was enacted, it only included the rights to reproduction, adaption, distribution, performance, and display. See Digital Performance Right in Sound Recordings Act of 1995, Pub. L. No. 104-39, § 2, 109 Stat. 336, 336 (codified as amended at 17 U.S.C. § 106(6)). Added to the Copyright Act two decades later, § 106(6) grants a copyright holder the exclusive right, “in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.” § 106(6). Section 106(6) is subject to several limitations set forth in § 114 of the Act. See § 114. Due to § 114’s complexity and narrow applicability, this article did not consider whether platforms’ user agreements granted any licenses relating to § 106(6). See § 114(d)(1)(A) (exempting noninteractive, nonsubscription broadcast transmission); see also 4 William F. Patry, Patry on Copyright § 14:82 (2022) (noting § 114 alone is over “21 single-spaced, printed pages” stipulating “voluminous limitations” to § 106(6) that are “both vague and maddeningly detailed”).

246 Here, “consenting user” refers to a user that has agreed to the platform’s user agreement. Typically, users agree when creating an account with the platform; however, certain posts can sometimes be accessed without signing up and creating an account.

247 Licensing of Intellectual Property § 1A.01[5] (2022).

248 For example, Facebook’s and Instagram’s user agreements license exclusive rights to the platform “consistent with [the user’s] privacy and application settings.” See Terms of Service, Facebook, supra note 243; Terms of Use, Instagram, supra note 243. Both Instagram and Facebook outline how a user can change their privacy settings on the platform, but neither elaborates on how a user’s privacy setting restricts the platforms’ license in effect. On the other hand, YouTube’s user agreement states that users grant YouTube a license to exclusive rights “in connection with [YouTube] and YouTube’s … business, including for the purpose of promoting and redistributing part or all of the service.” Terms of Service, YouTube, supra note 243. Similarly, Pinterest qualifies the license granted to the platform as “solely for the purposes of operating, developing, providing, and using Pinterest.” Terms of Service, Pinterest, supra note 243. In comparison, a user grants TikTok an “unconditional irrevocable, non-exclusive, royalty-free, fully transferable, perpetual worldwide license.” Terms of Service, TikTok, supra note 243.

249 Licensing of Intellectual Property § 1A.01 (2022) (explaining that “since a license only grants rights to the specific legal entities that are party to it, the license must … specify[] that that licensee’s affiliates are parties or third-party beneficiaries”).

250 Both YouTube and Pinterest qualify such license. YouTube’s user agreement states that users grant other YouTube users a license to “access your Content through the Service, and to use that Content, including to reproduce, distribute, prepare derivative works, display, and perform it.” However, third parties may do so “only as enabled by a feature of the Service (such as video playback or embeds).” Terms of Service, YouTube, supra note 243.

251 Id. (emphasis added).

252 Terms of Service, Pinterest, supra note 243 (emphasis added).

253 Id.

254 When agreeing to TikTok’s user agreement, a user expressly grants the platform the right to “authorize other users of the Services and other third-parties to view, access, use, download, modify, adapt, reproduce, make derivative works of, publish and/or transmit your User Content in any format and on any platform, either now known or hereinafter invented.” Terms of Service, TikTok, supra note 243.

255 Chapman v. N.Y. State Div. for Youth, 546 F.3d 230, 237 (2d Cir. 2008) (“In the absence of a clear provision, courts are reluctant to declare a perpetual license as a matter of law.”).

256 The duration of the license granted under YouTube’s user agreement is unclear, stating that the license continues “for a commercially reasonable period of time” after removal or deletion of content. Terms of Service, YouTube, supra note 243.

257 Facebook’s and Instagram’s licenses end when the consenting user’s content is deleted from these platforms’ systems, but Facebook has made it clear that simply deleting the user’s content from their own profile is not enough. See Terms of Service, Facebook, supra note 243; Terms of Use, Instagram, supra note 243.

258 The duration of each user’s license under Twitter’s user agreement is unclear. Section 4 of Twitter’s user agreement states that any user may end her legal agreement with Twitter by terminating the account and discontinuing use of Twitter. Twitter Terms of Service, Twitter, supra note 243. However, Section 4 also states that some sections survive the termination of the agreement—Sections 2, 3, 5, and 6—including Section 3, which grants Twitter the rights to posted content. Id. Thus, under Section 4, the licenses remain in effect after a user has terminated their Twitter account and the user agreement is silent as to when the surviving rights of use would end.

259 Pinterest’s user agreement states that the platform may keep the consenting user’s content “for a reasonable period of time for backup, archival, or audit purposes” after termination or deactivation of the user’s account. Terms of Service, Pinterest, supra note 243. However, the license granted under Pinterest’s user agreement still survives any termination by the user, because Pinterest reserves the right to use the terminating user’s content that “other users have stored or shared on Pinterest” prior to termination. Id.

260 TikTok’s user agreement requires the consenting user to grant the platform an “unconditional,” “irrevocable,” and “perpetual” license to user content, which can be easily interpreted as a never-ending license. Terms of Service, TikTok, supra note 243. Unlike TikTok, all the other platforms’ licenses seem to end at some point, but the exact point in time at which the license terminates is unclear.

261 For a definition of intraplatform and interplatform sharing, see the second section of this article.

262 We acknowledge that there could be alternative readings of this language; however, we suggest this is a fair interpretation considering that the platforms require users to grant the platform itself a license to exercise at least five of the subscriber’s exclusive rights in posted content. Some platforms qualify such licenses, but the licenses are broad and include no limitation as to where the content can be shared (i.e., within the platform, between platforms, or entirely outside any social media platform).

263 See supra Section III.A.

264 Terms of Service, Pinterest, supra note 243 (emphasis added).

265 That is, it is unclear as to whether the clause “on Pinterest” refers only to the specific, posted content—as in the licensed rights apply only to content posted on Pinterest, but without limitation otherwise. Such language could also indicate a restriction on the rights granted—as in Pinterest and other users can only use the content while engaging in permitted activities (e.g., “create derivative works, perform, and distribute”) on the Pinterest platform.

266 Terms of Service, TikTok, supra note 243 (emphasis added).

267 Twitter Terms of Service, Twitter, supra note 243 (emphasis added).

268 Twitter Privacy Policy, Twitter (June 10, 2022), https://twitter.com/en/privacy. Twitter’s privacy policy also states that it has standard terms that govern how the information can be used through APIs, including embedding. The standard terms refer to Twitter’s developer terms, which apply to a user’s access and use of “Twitter’s API, Twitter Content and Twitter Marks.” Twitter Developer Terms, Twitter (Jan. 19, 2023), https://developer.twitter.com/en/developer-terms/agreement.

269 For example, Facebook’s user agreement expressly states that Facebook is allowed to “store, copy, and share” the user’s content with others, including service providers and other Meta Products used by the user. Terms of Service, Facebook, supra note 250.

270 Data Policy, Meta (Jan. 1, 2023), https://privacycenter.instagram.com/policy. The policy defines a user’s audience as follows:

• On Facebook, the audience can be made up of:

• The public, including people on and off Facebook

• Your friends and other connections, such as the friends of people you tag

• A customized list of people

• Yourself

• The members of a single community, such as a group

• On Instagram, you can set the audience for what you share by choosing between a private or public account.

271 Id. (emphasis added).

272 Id. (emphasis added).

273 Terms of Service, YouTube, supra note 243.

274 Id.

275 See Reinke, supra note 150, at 592. For example, law student Daniel Reinke argued that the incorporation test better comports with the plain language and structure of the Copyright Act and the U.S. Supreme Court’s holding in American Broadcasting Cos., Inc. v. Aereo, Inc., 573 U.S. 431 (2014). See id. at 592. Based on this conclusion, Reinke argues that the “incorporation test will restore the true nature of the public display right in the online context while maintaining a healthy online ecosystem.” Id. at 608.

276 See Lian, supra note 8, at 269–71. Law student Jie Lian proposed that Congress amend the relevant sections of the Copyright Act to “shield … embedding from liability for copyright infringement.” Id. at 269. Lian provided model language delineating the scope of the exception, which includes an “opt-out scheme” for copyright holders and a knowledge element. Id. at 271–74. However, as acknowledged by Lian, statutory amendments are difficult to achieve, take time to enact, and in the end can be outpaced by technological developments. Id. at 270. As an illustration of the challenge to the legislative route, from 2019 to 2022, Congress enacted only seven percent of laws that were introduced. Statistics and Historical Comparison, GovTrack, https://www.govtrack.us/congress/bills/statistics (last visited Feb. 7, 2023). Lian rightly argued that “such a concern should not be an excuse for legislative inaction.” Lian, supra note 8, at 270. However, a solution via congressional action seems unlikely—and even more unlikely than a solution via the judiciary.

277 See generally Ginsburg & Budiardjo, supra note 9.

278 Id. at 445–62.

279 The court in Goldman acknowledged there may be a defense under the DMCA, but it never reached the merits of that argument. See Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585, 596 (S.D.N.Y. 2018).

280 See McGucken III, No. 19-cv-09617, 2022 WL 836786, at *6–8 (S.D.N.Y. Mar. 21, 2022).

281 Id. at *8–9.

282 See Madeleine Patton, Comment, How to Protect Users’ Copyright Rights in the Age of Social Media Platforms and Their Unread Terms of Service, 53 U. S.F. L. Rev. 463, 478–80 (2019) (“[T]his comment urges social media platforms to voluntarily require their terms of service, thereby resolving the issues raised in this comment by limiting their license by making it non-transferable and not sub-licensable.”).

283 See, e.g., Ginsburg & Budiardjo, supra note 9, at 464 (“One can expect that these platforms will design Terms of Service contracts which will govern the linking permissions of the user-generated content uploaded to the platform by requiring users to agree expressly to a limited waiver of their rights of public display and performance on-platform.”); de Zwart, supra note 235, at 626 (“Providers have responded to emerging issues with changes to the [end user license agreement], constantly tweaking and revising it to accommodate and address issues as they arise.”).

284 See generally Tan, supra note 7; see also Patton, supra note 282, at 479.

285 Although this is by no means the only way to address this issue, licensing through user agreements is a more practical and prompt way to provide clarity on the permissibility of embedding and to facilitate free embedding online. Platforms’ technological affordances (e.g., the embed button) and the user agreements can have an immediate and direct effect on users’ behavior online. Even if platforms were to amend their user agreements in a way that is different from the one suggested in this article, a revision to user agreements that provides clarity and predictability of the bounds of permissible use can offer a significant improvement to minimize uncertainty about online content sharing.

286 See supra note 235 and accompanying text.

287 Terms of Service, YouTube, supra note 243.

288 Terms of Service, Facebook, supra note 243.

289 Id. It is unclear from this language who must delete the content for the license to effectively terminate.

290 See supra Section II.B.

291 Display requirements: Tweets, Twitter, https://developer.twitter.com/en/developer-terms/display-requirements (last visited Feb. 11, 2023).

292 Id.

293 See supra note 231 and accompanying text.

294 See supra note 232 and accompanying text.

295 Cf. Kristina E. Music Biro et al., 21 Am. Jur. Crim. L. § 377 (2022) (“Res judicata, also known as claim preclusion, prohibits the relitigation of claims which have been raised or could have been raised in a prior action between the same parties or their privies and which have been resolved in a court of competent jurisdiction.”); id. § 378 (“Collateral estoppel means that when an issue of ultimate fact has once been determined by a valid and final judgment, that same issue cannot again be litigated between the same parties in any future lawsuit.”).

296 For example, Instagram added the option to disable its embedding feature on public posts after a concerted effort by two organizations in response to the ‘“the rampant problem’ of third-parties using the embedding feature to bypass copyright protections.” Jaron Schneider, Instagram Users Can Now Prevent Others from Embedding Their Photos, PetaPixel (Dec. 17, 2021), https://petapixel.com/2021/12/17/instagram-users-can-now-prevent-others-from-embedding-their-photos.

297 U.S. Const. art. I, § 8, cl. 8 (“The Congress shall have power … to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” (emphasis added)); Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984) (“[Copyright law] is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.”); see also Tarleton Gillespie, Wired Shut: Copyright and the Shape of Digital Culture 21 (2007) (describing copyright’s purpose as ensuring “the sustenance of art, knowledge, and culture” by “offering authors legal property rights over their work so they may enjoy a profit from its circulation.”).

298 Litman, supra note 14, at 30–31.

299 Id.

300 See, e.g., Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) (“Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.”).