News outlets and other digital media companies often use the embedding option to source content from social media platforms such as Instagram, TikTok, and Twitter. In 2007, the Ninth Circuit created a server test that allows for the embedding of content and shields those who choose to embed from copyright liability. That shield is currently being tested. According to Bloomberg Law, "Several New York federal judges have rejected the test in denying motions to dismiss copyright cases. The most recent of these opinions rebuffed Sinclair Broadcast Group in the U.S. District Court for the Southern District of New York on July 30. "The server rule is contrary to the text and legislative history of the Copyright Act," the court said."
Furthermore, Bloomberg Law states:
Copyright attorney James Sammataro of Pryor Cashman LLP suggested social media offers a free platform for exposure, with the tradeoff that their content gets broad exposure. But other attorneys highlight that it also cuts off licensing opportunities.
[...]
Sammataro said companies would benefit from legal clarity. That would likely take years, however.
In the meantime, he pointed to technical solutions by the platforms themselves. YouTube allows users to disable embeds for their videos, and other platforms like Instagram and TikTok could implement similar tools.
Sammataro also suggested novel technical measures like an instant license that pops up upon an embed attempt, which could seamlessly let news organizations get permission and creators get paid.
"I do think that may be the path forward: not through the law but a practical way forward where everyone gets something, and we're all a little bit dissatisfied," Sammataro said.
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