Implied License Doctrine as a Shield for Copyright Infringement Claims Involving Embedding Content
Ji-Young Won · Seton Hall Law Review · 2024
In early March 2022, the US District Court for the Southern District of New York ("Southern District of New York"), in McGucken v. Newsweek, LLC, added to a growing uncertainty of what constitutes copyright infringement in the digital environment.1 Instead of relying on the Ninth Circuit's holding from more than fifteen years ago that embedding website content is not a copyright violation, the Southern District of New York joined its previous opinions in concluding that embedding violates the copyright owner's exclusive right to display. 2 This decision carries a significant meaning not only because it has the potential to result in a circuit split if it reaches the Second Circuit but also because embedding is such a common practice among online publishers.3 In fact, a 2016 study found that almost one in four online news articles contained social media embeds.4 A more recent study confirmed this trend, which found that "[t]he inclusion of social media posts-tweets, in particular-in digital news stories, both as commentary and increasingly as news sources, has become commonplace in recent years." 5