In a significant ruling with far-reaching implications for online content sharing, the US Court of Appeals for the Ninth Circuit has determined that Instagram cannot be held liable for copyright infringement when images are embedded on third-party websites. The decision comes as a response to a class-action lawsuit filed by two photographers, Alexis Hunley and Matthew Brauer, who accused Instagram of violating copyright laws by allowing media outlets like Time and BuzzFeed News to embed their copyrighted photos in online articles.
The case revolves around two separate incidents. In 2016, Time published an article titled “These Photographers Are Covering the Presidential Campaign on Instagram,” which featured Brauer’s embedded Instagram photo of Hillary Clinton. Similarly, BuzzFeed News included an embedded photo taken by Hunley in its 2020 article covering the Black Lives Matter protests.
The photographers argued that both Time and BuzzFeed News embedded their posts without obtaining proper licenses, thus engaging in secondary copyright infringement. They further accused Instagram of intentionally promoting and facilitating this infringement by third-party websites.
However, the court ultimately sided with Instagram, ruling that the act of embedding a photo does not constitute “displaying a copy” of the underlying image. In their decision, the judges cited the 2007 landmark case, Perfect 10 v. Amazon, which introduced the “server test.” According to this test, websites are not liable for copyright infringement if the copyrighted work is not stored on their servers. In line with this principle, the court held that Instagram could not be held accountable for secondary copyright infringement in this particular case.
The “server test” has played a crucial role in safeguarding various websites, including tech giants like Google and Mashable, from legal disputes concerning embedded images. However, recent years have seen some pushback against this concept. In 2018, a New York district court judge interpreted the server test differently and ruled that embedding a tweet on a webpage could indeed be considered copyright infringement. Last year, US District Judge Jed Rakoff also challenged the server test, asserting that it contradicts the text and legislative history of the Copyright Act.
This ruling has significant implications for online platforms and media outlets that regularly embed content from social media platforms like Instagram. While it reaffirms the protection offered to websites under the server test, it also adds to the ongoing debate surrounding copyright law in the digital age.
Many legal experts and industry stakeholders are closely monitoring the evolving landscape of copyright law to ensure proper protection of intellectual property rights while maintaining a balance with the freedom of online content sharing. As technology continues to advance, courts will likely face more complex cases in determining the boundaries of copyright infringement in the context of emerging digital practices.
In their argument, Hunley and Brauer contended that Instagram should be held liable for secondary copyright infringement as it allegedly encouraged and facilitated the embedding of copyrighted images by third-party websites without making any effort to control or prevent infringement. However, the court ruled that embedding content is not equivalent to copying or distributing it since the images are not stored on the third-party servers.
The ruling sets a precedent that may protect content-sharing platforms like Instagram from similar copyright infringement claims in the future. However, the extent of this protection may vary depending on how different courts interpret the “server test” in their jurisdictions.
This case is just one example of the ongoing tension between copyright holders and online platforms regarding user-generated content. Social media platforms and content-sharing websites have been grappling with copyright issues for years, especially when users upload copyrighted material without permission. The decision is likely to spark further discussions on the responsibilities of platforms like Instagram in policing copyright infringement.
Instagram’s defence throughout the legal proceedings cantered around the fact that it does not have control over which websites choose to embed content posted on its platform. By enabling the “Embed” feature, Instagram allows users to share their photos on external websites while giving proper attribution to the original creator.
