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Applying Copyright Concepts Through the Lens of Goldman v Breitbart News

Level: Advanced
Runtime: 88 minutes
Recorded Date: July 16, 2019
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  • Understanding copyright’s public display right: how it works, and its significance for website operators, online publishers, journalists, and photographers (10 minutes)
  • An introduction into the significance of “Goldman v. Breitbart News” and its connection to embedding and linking liability (“the server test”). (10 minutes)
  • Background on the technology that underlies the Breitbart decision and how embedding, linking, website code, and browsers work generally (10 minutes)
  • A deep dive into the different types of “Public Display” right and how Breitbart reinterprets this right suggesting a circuit split in how public display is viewed (30 minutes)
  • How key copyright defenses apply for websites and online intermediaries that embed or link to third party content (10 minutes)
  • Business, legal, and strategy reasons why Twitter (and social media websites) aren’t targets in Breitbart-like lawsuits (10 minutes)
  • Hypothetical practical takeaways for advising website operators, publishers, and photographers in light of Breitbart and future attacks on the “server test” (15 minutes)
Runtime: 1 hour and 28 minutes
Recorded: July 16, 2019


Is the “server test” dead? Advising news publishers, social media sites, and photographers as transactional attorneys and arguing “public display” copyright violations as litigators has become more complex in light of “Goldman v. Breitbart News” and its failure to adopt the “server test” as the standard for determining online public display violations. Why has this single district court case been troubling copyright pundits? Why does it have the potential to drastically change the way the internet works in the United States and how you should advise your clients? How can litigators who represent copyright holders take advantage of this moment of “confusion.”

This program introduces basic technological concepts like “linking,” “embedding,” “how browsers and websites are served” in a robust manner probably beyond the common sense understanding of these concepts, but just enough to explain why the way these technologies really “work” is critical to the arguments that you make as a copyright litigator.

During the program, we discuss the “public display” right and its interaction with those technologies and why the current ruling in Breitbart is so significant. We discuss the parties arguments in detail and well-considered but still troubling rationale the Honorable Judge Forrest used in her opinion.

Finally, we describe action items that you can take in advising your clients in light of Brietbart.

This program was recorded on July 16th, 2019.

Provided By

New Media Rights
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Art Neil

Founder/Executive Director
New Media Rights

Art is the founder and Executive Director of New Media Rights, and specializes in internet, intellectual property, privacy, and media law. As an adjunct professor at California Western School of Law, Art teaches Internet & Social Media Law as well as the Internet & Media Law Clinic. He writes about legal issues for creators and small businesses as a Contributor for Forbes.

Art is the author of the book Don’t Panic: A Legal Guide (in plain English) for Small Businesses and Creative Professionals which is used by universities across the country to teach legal concepts to students. He is also is the creator of the Fair Use App, which is licensed by the University of California to teach concepts surrounding fair use and content reuse to staff and faculty.

In 2011, 2013, and 2015 Art was appointed as a member of the Federal Communication Commission’s Consumer Advisory Committee, where he served as Co-chair of the Broadband Working Group. He has published numerous articles on copyright and net neutrality including in the Journal for Internet Law, the Tulane Intellectual Property Law and Technology Journal, and CEB Business Law Quarterly (a publication of the State Bar of California and the University of California), among others. He speaks regularly on his areas of expertise, and has been a speaker at the Copyright Society of the USA, the American Intellectual Property Law Association, and the California State Bar Intellectual Property conference.

Art received his J.D. from University of San Diego School of Law in 2006, and his B.A. from the College of William & Mary in 2001.

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Shaun Spalding

Assistant Director
New Media Rights

Shaun Spalding is Assistant Director of New Media Rights and an IP attorney specializing in digital entertainment transactions and licensing. New Media Rights is a non-profit that represents creators and startups working on educational or innovative projects who may not otherwise be able to afford legal services.

In private practice, Shaun represented a handful of the top-40 most watched and subscribed to Youtube channels in the world.

Shaun is an adjunct professor at California Western School of Law teaching an Internet and Media Law clinical course. Outside of academia, over 10,000 working creators have enrolled in his online courses aimed at teaching legal basics to creatives.

Before practicing law, Shaun worked as a commercial filmmaker producing and directing brand integrations for companies like SWISS Airlines, Sharp Televisions, the Motion Picture Association of America, and Henkel.

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