A federal appeals panel has canceled a class action accusing Instagram of copyright infringement.
Photographers Alexis Hunley and Scott Brauer sued the social media platform over its software that allows users to embed their posts on other websites. U.S. District Judge Charles Breyer dismissed the complaint, prompting a challenge to the U.S Ninth Circuit Court of Appeals.
Ninth Circuit Judge Jay Bybee wrote the opinion, issued July 17; Circuit Judge Patrick Bumatay and District Judge Richard Bennett concurred. Bennett, a federal judge from Maryland, sat on the panel by designation.
Bybee said the complaint tested the limits of a 2007 U.S. Ninth Circuit opinion, Perfect 10 v. Amazon, following a 2014 U.S. Supreme Court opinion, American Broadcasting Companies v. Aereo.
Judge Breyer, from the Northern District of California, held that Perfect 10 foreclosed relief for the photographers on their secondary infringement claim because an embedded photo doesn’t meet the legal definition of displaying a copy of an image. The panel agreed.
“Embedding is different from merely providing a hyperlink,” Bybee wrote. “Hyperlinking gives the URL address where external content is located directly to a user. To access that content, the user must click on the URL to open the linked website in its entirety. By contrast, embedding provides instructions to the browser, and the browser automatically retrieves and shows the content from the host website in the format specified by the embedding website. Embedding therefore allows users to see the content itself — not merely the address — on the embedding website without navigating away from the site.”
Another important distinction, the panel continued, is that embedding doesn’t constitute storing a copy of an underlying image. The original is stored on one server and can appear on many different websites, while the host can delete or replace the image at will.
Hunley said BuzzFeed embedded an image from her Instagram account, with credit, depicting a June 3, 2020, Black Lives Matter demonstration. Brauer said Time did the same with a copyrighted photo of Hillary Clinton for a January 2016 story on presidential campaign photographers.
In reviewing Perfect 10, the panel rejected Hunley’s argument it applied only to search engines and said the key issue in digital copyright disputes is where images are stored. Bybee said a requirement the digital copy of an image “be ‘fixed in the computer’s memory’ has come to be known as the ‘Server Test,’ ” and explained Google never stored a copy of the full-sized images used to generate thumbnails for its Image Search function. The panel further said this test has already been applied in litigation outside the search engine context.
Hunley also said the Copyright Act and American Broadcasting Co. v. Aereo each conflict with Perfect 10. The panel said it would not consider the Copyright Act issue, with Bybee writing “whatever merit these arguments might have in other contexts, Perfect 10 states the rule for infringing the public display right using embedding.” Regarding the Aereo dispute, the panel said Hunley failed to equate that company’s legal definition of “performance” with Instagram’s right to “display” images.
“Regardless of what Aereo said about retransmission of licensed works, Perfect 10 still forecloses liability to Hunley because it answered a predicate question: Whether embedding constitutes ‘display’ of a ‘copy,’ ” Bybee wrote. “Aereo may have clarified who is liable for retransmitting or providing equipment to facilitate access to a display — but unless an underlying ‘copy’ of the work is being transmitted, there is no direct infringement of the exclusive display right.”
The panel also said the photographers failed to show how the perception of website users frames the legality of Instagram’s embedding technology. It concluded by rejecting arguments from the photographers, Instagram and several professional associations regarding the Server Test. Calling those concerns “serious and well argued,” the panel said the issue is one of balance between licensing rights and the open internet.
“As citizens and internet users, we too are concerned with the various tensions in the law and the implications of our decisions, but we are not the policymakers,” Bybee wrote. “We cannot foreclose the possibility that some future panel may conclude that there are ways to display a copy other than to store it on a server. But it is not our role to craft a policy solution and rewrite the law to our tastes. We can only apply the law as it currently exists.”
Representing the photographers are attorneys from the firm of Cera LLP, of San Francisco; the Law Offices of Todd Friedman, of Woodland Hills, Calif.; Duncan Firm, of Little Rock, Ark.; and Hoben Law, of Peekskill, N.Y.
Instagram is represented by Morrison and Foerster, of San Francisco and Los Angeles; and Durie Tangri, of San Francisco.
Doniger/Burroughs, of Venice, Calif., Michael Manapol, of Beverly Hills, Calif., and Mickey Osterreicher and Alicia Calzada, of the National Press Photographers Association in Athens, Ga., filed briefs on behalf of several photography and media licensing organizations.
Rebecca Tushnet, of Lex Lumina, New York, filed a brief on behalf of Google, Pinterest, Twitter and Wikimedia.
The Washington, D.C., office of Williams & Connolly field a brief for the Internet Society.
Mitchell Stoltz and Cara Gagliano, of the Electronic Frontier Foundation, San Francisco; Alexandra Sternburg, of the Computer and Communications Industry Association, Washington, D.C.; and Rachel Leswing, of Authors Alliance, Berkeley, Calif., filed a brief on behalf of Electronic Frontier Foundation, Computer and Communications Industry Association, American Library Association, Association of Research Libraries, Association of College and Research Libraries, Authors Alliance, and the Organization for Transformative Works.