Clean Chit for Instagram in its Embedding Tool Copyright Case

Recently, San Francisco Federal Court dismissed a lawsuit filed by a group of photographers where they were alleging Instagram’s embedding tool of enabling its users to infringe their copyrights. The U.S. District Judge Charles Breyer said: “Instagram feature doesn’t violate the photographers’ exclusive right to display the pictures publicly because third-party websites that embed the images don’t store their own copies of them.”

The decision was reached after the application of the 9th Circuit’s divisive server test for deciding on internet copyright infringement. Under this test, a website can violate only the display right of the owner that too in cases where it also stores a copy of the copyrighted work on its own server. However, a Manhattan Federal Judge who U.S. District Judge is named Jed Rakoff became the second judge in that court to reject the server test in the month of July. “But unlike the U.S. District Court for the Southern District of New York, this Court is not free to ignore Ninth Circuit precedent,” Breyer said.

The photographers’ claims were represented before the court by attorney James Bartolomei of the Duncan Firm. It is likely to assume that photographers would appeal the decision in the future as told by their lawyer. On the other hand, Instagram’s parent company Facebook was represented by attorneys Ragesh Tangri and Allyson Bennett of Durie Tangri. They declined to comment on the matter as if of now.

The plaintiffs were led by some famous photographers including Alexis Hunley and Matthew Brauer. The class-action complaint was filed in the month of May where they seemed to allege Instagram’s embedding scheme of encouraging widespread copyright infringement making websites like Buzzfeed, HuffPost, and Mashable its medium. Infringement is encouraged as users are induced on such websites to display their pictures but no compensation is given to the copyright owners.

Expectedly, Instagram moved forward dismissing the complaint in the month of July and argued in its favor that it could only be accounted for the secondary infringement that too if the sites directly infringe, and further added that since they neither host nor transmit an image in any form from their own servers, they also cleared the server test.

Breyer backed Instagram in his decision that mere usage of the embedding tool doesn’t make them copyright law violators if we analyze through the server test. “Because they do not store the images and videos, they do not ‘fix’ the copyrighted work in any ‘tangible medium of expression,’” Breyer said. “Therefore, when they embed the images and videos, they do not display ‘copies’ of the copyrighted work.”

The case can be reached with the name Hunley v. Instagram LLC, U.S. District Court for the Northern District of California bearing No. 3:21-cv-03778.