Embedding is a technical process that allows one website to link to and incorporate content from a second website. So when the user visits the first website, they see the content on the second website even though the content is actually still on the second’s website.
In the past couple of years, there have been two decisions about whether or not embedding is copyright infringement.
First up, Justin Goldman sued Breitbart News Network (among others) for using his photo of Tom Brady. The photo went viral. It was posted on Twitter, Reddit and other websites such as Breitbart. All of this viral posting happened without Justin’s permission. Breitbart filed a motion for summary judgment. In its motion, Breitbart argued that embedding an image is not copying the image. The court denied Breitbart’s motion. The court held that embedding an image on a website can be considered copyright infringement. So the matter needs to go to trial.
WHY YOU SHOULD KNOW THIS. Copyright infringement occurs when someone copies the work of another without permission. But is the technological act of embedding content really making a copy? The current version of the Copyright Act was written in the 1970s before the digital revolution. The Act didn’t contemplate emerging technologies and how a simple thing like “copying” may operate differently from the then current technology. Unless and until there’s a better understanding of whether embedding is infringement, look before you embed. Pay attention to whether there’s a license to embed the content.