Instagram Embedding on Third-Party Sites Amounts to Widespread Copyright Infringement, Class Action Alleges [UPDATE]
Last Updated on February 4, 2022
Hunley et al. v. Instagram, LLC
Filed: May 19, 2021 ◆§ 3:21-cv-03778
A class action alleges Instagram has encouraged, induced and facilitated third parties to commit widespread copyright infringement through embeds on other websites.
Case Updates
February 4, 2022 – Instagram Third-Party Embedding Case Dismissed Again
The proposed class action detailed on this page was dismissed on February 1, 2022 for a second time by U.S. District Judge Charles R. Breyer.
In a three-page order, Judge Breyer relayed that although the court advised the plaintiff to appeal the initial dismissal of his suit to the Ninth Circuit, he declined to do so and instead filed an amended complaint. This complaint, the judge said, included additional pages of text arguing that precedent set in a 2007 copyright infringement suit against Amazon.com Inc. were “wrongly decided.”
“To the extent that Hunley includes revised factual allegations, they only confirm that, under Perfect 10, the claims fail as a matter of law,” the judge wrote, adding that although photo viewers may not know or care that a photo or video is located on Instagram’s server, “the problem for [the plaintiff] is that Ninth Circuit law does.”
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September 22, 2021 – Case Dismissed
Instagram’s motion to dismiss the proposed class action detailed on this page has been granted by United States District Judge Charles R. Breyer, who ruled that a Ninth Circuit precedent effectively sunk the plaintiff’s dispute.
In a five-page order filed on September 17, Judge Breyer pointed toward a 2007 Ninth Circuit decision in a copyright infringement case, Perfect 10, Inc. v. Amazon.com, Inc., that established what’s known as the “server test.” Essentially, if a website publisher does not “store” an image or video and instead, for instance, embeds the content, the publisher therefore does not “communicate a copy” of the image or video and thus does not violate the copyright owner’s exclusive display right, Judge Breyer wrote.
Judge Breyer found that although the plaintiff argued that the Perfect 10 server test did not apply in his case against Instagram, “[t]he court disagrees.” Stressing that the dispute between the plaintiff and Instagram “hinge[d] on a single legal question,” i.e., whether third parties who embed copyrighted works have violated Instagram users’ display rights, such that Instagram might be secondarily liable for copyright infringement, the judge found in favor of the Facebook-owned social media platform:
“Under Perfect 10, the third parties do not violate Instagram users’ exclusive display rights. … Because they do not store the images and videos, they do not ‘fix’ the copyrighted work in any ‘tangible medium of expression.’ … Therefore, when they embed the images and videos, they do not display ‘copies’ of the copyrighted work.”
Judge Breyer called foul on the plaintiff’s argument that the server test should not apply to websites that embed images and videos shared on social media because the Perfect 10 case instead involved a search engine. Moreover, the plaintiff’s contention relied upon an out-of-circuit district court decision rejecting the server test, the judge added.
“But unlike the U.S. District Court for the Southern District of New York, this Court is not free to ignore Ninth Circuit precedent,” the order states.
Judge Breyer ended the order by relaying that the plaintiff is free to present his interpretation of the validity of the server test to the Ninth Circuit and the Supreme Court, “[b]ut this Court is not free to artificially narrow or overrule binding precedent.”
The plaintiff may file an amended complaint within 30 days of September 17.
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A proposed class action alleges Instagram has encouraged, induced and facilitated third parties to commit widespread copyright infringement by way of enabling users’ posts to be embedded on websites.
The 25-page lawsuit claims the defendant’s embedding capability—which allows for HTML code for a particular Instagram post to be copied and inserted into a webpage so that the photo or video appears within the content of a post—has vastly extended Instagram’s—and therefore Facebook’s—reach across the internet without appropriately compensating those who hold the copyright for the embedded content. The effects of this include what the lawsuit calls the “usurpation” of the value of copyrighted works, as the practice of embedding has vitiated and diluted the market for licensing fees, the case claims.
The plaintiffs, California and Massachusetts residents who own copyrighted works, charge that a third party’s embedding of a copyrighted photo or video from an Instagram user’s account to its website without a license, permission or valid legal defense from the copyright owner or the Facebook-owned social media platform amounts to copyright infringement in violation of the Copyright Act of 1976.
According to the lawsuit, the defendant has created and encouraged the use of its embedding tool as a means to not only expand the platform’s presence on third-party websites but to obtain a direct financial benefit from increased traffic, impressions, clicks and views through monetized advertising on Instagram. By encouraging, through the “direction and control” of Facebook, third-party online publishers such as BuzzFeed, Time and Mashable to embed copyrighted workers on their sites with neither a license nor permission from the copyright owners or Instagram, the social media platform is “secondarily liable” for each instance of copyright infringement caused by the embedding of a photo or video, the complaint alleges.
Per the lawsuit, Instagram, from roughly July 2013 to June 2020, “knew or recklessly disregarded” the fact that no third party ever obtained a license or permission from the platform to embed a copyrighted photo or video, and was similarly aware of or ignored that no third party ever obtained a license or permission from the copyright owner each time the embed tool was used to display a copyrighted work. According to the complaint, Instagram has also “regularly and systematically” handled, controlled, made reference to and touched valuable copyrighted works with the intent and knowledge that third parties online were embedding those works without obtaining a license to do so.
In all, the traffic, clicks, likes, shares and other revenue-generating activity enjoyed by Instagram through the embedding of copyrighted works was “born out of the infringing activity of third parties,” the suit charges.
Further, the lawsuit alleges Instagram has misled the public to believe that anyone could embed any copyrighted work from any Instagram account, “like eating for free at a buffet table of photos,” by way of its embed tool. Similarly, Instagram has also misled third parties into believing they do not need to obtain a license or permission in order to embed copyrighted works on their websites, the case says.
According to the suit, the buck stopped abruptly when Instagram publicly admitted in June 2020 via a Facebook spokesperson that third parties must, in fact, secure a license or permission from copyright holders to embed copyrighted works.
“By this admission, Instagram has been caught red-handed in its scheme to usurp the value from copyrighted works for its own benefit in contradiction of its 2012 promise not to sell and monetize copyright owners’ photos and videos to third parties,” the complaint reads, noting the company vowed after its acquisition by Facebook to respect users’ copyrights after its attempt to grant itself the perpetual right to sell users’ photos without payment or notification sparked public outcry.
Compounding matters for copyright owners who publish their own photos and videos to Instagram is that the platform provides no tool with which to track third-party embeds of their protected posts, leaving the copyright holders with no means of discovering apparent copyright infringements. Instagram, on the other hand, has retained for itself the ability to track embeds of user content across the internet, the suit says.
“No tool exists for copyright owners to police the extensive infringement of their copyrighted works,” the case stresses. “Instagram knowingly exploited these limitations to maximize its (and its parent Facebook’s) insatiable drive for user volume and the resulting advertising revenue. The more Instagram could induce and encourage third parties to embed copyrighted works from Instagram, the more revenue Instagram generated from traffic and advertising revenue.”
One plaintiff, a California resident, is the owner of a copyrighted photo about the 2020 George Floyd protests that BuzzFeed embedded onto its site without a license or permission, the case states. The second plaintiff, a Massachusetts resident, is the owner of a copyrighted photo about the 2016 presidential election that was similarly embedded into a Time.com post without his permission or a license to do so, per the lawsuit.
The proposed class action looks to cover 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 work(s) have been uploaded to Instagram, where such copyrighted owners have had their copyrighted work embedded and caused to be displayed via Instagram’s embedding tool on a third-party website without the copyright owner’s consent, permission or a license.
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