Class Action Alleges Facebook Has Benefited from Unauthorized Embedding of Copyrighted User Content

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A proposed class action alleges Meta Platforms has unlawfully allowed third parties to embed copyrighted photos and videos from certain Facebook accounts to outside websites without a license, permission or valid legal defense to do so. 

The 27-page lawsuit claims that since at least July 2013 and until March 2021, Facebook knew of or “recklessly disregarded” the fact that third parties had not obtained a license or permission from the platform to embed users’ copyrighted photos or videos, much less received the copyright owners’ permission each time the embed tool was used to display a copyrighted work. Per the case, Facebook has failed to provide copyright owners with any tool, device or meaningful way to control or track third-party embeds of copyrighted Facebook posts, which the lawsuit says has deprived copyright owners of the ability to discover alleged infringements. 

The platform, meanwhile, has retained for itself the ability to track embeds of Facebook user content across the internet and copyrighted works that are embedded on third-party websites while retaining “100% of the benefit and/or revenue from the infringing activity of third-party embedders,” the lawsuit alleges.

“Facebook’s scheme utilized the embedding tool to convert Plaintiff and members of the Class’s copyrighted works to Facebook’s benefit,” the suit says, stating that the social media company’s terms of use implied to copyright owners that Facebook “would not allow use of copyrighted works through its ‘embed’ feature.” 

The case defines “embedding” as the technical process by which a copyrighted work can be made visible and displayed without the copyrighted work being saved on the server of a third-party website. To allow for embedding, a coder or web designer need only add an “embed” code to the HTML instructions from a public Facebook account, which thereby directs a browser to the Facebook server to retrieve the photo or video, the suit says. An embedded photo or video will then hyperlink to the third-party webpage for display without authorization from the copyright owner, the case relays. 

Copyrighted content that’s embedded on a third-party webpage appears no differently than any other content on the page, be it an advertisement, clickable link or the website’s original and/or owned or licensed content, the suit adds. 

Overall, the lawsuit charges that Facebook is liable for the conduct of third-party embedders who use its embed tool to cause copyrighted works to be displayed elsewhere. 

The plaintiff, a photographer, alleges Meta Platforms has run afoul of the federal Copyright Act of 1976 by allowing some of his copyrighted images to be embedded by third parties without his authorization. 

“Facebook is the beneficiary and ersatz custodian of millions of copyrighted photos and videos uploaded by its users,” the complaint reads. “Defendant reaps billions of dollars annually from hosting, tracking, encouraging, handling, and causing a significant number of such photos and videos, which include hundreds of thousands or even millions of registered copyrighted works, to be embedded and therefore infringed by third parties who used the embed tool.” 

The lawsuit looks to represent all persons or entities who, from July 1, 2013 to the present, owned the exclusive right to publicly perform, reproduce, publicly display, or distribute film, audiovisual, or photographs and/or videos over the internet for any work first going into the public domain after December 31, 1977 and whose registered copyrighted works have been uploaded to Facebook, where such copyrighted owner has had their copyrighted work embedded and caused to be displayed via Facebook’s embedding tool on a third-party website without the copyright owner’s consent, permission or a license. 

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