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District court dismisses claim that Instagram’s embedding tool subjects platform to secondary copyright infringement liability where posts containing copyrighted material are embedded in third-party websites, holding claim is barred by Ninth Circuit’s “server test.”
Plaintiffs Alexis Hunley and Matthew Brauer filed a copyright infringement action against Instagram, LLC, alleging violations of their exclusive rights to display the photographs and videos posted by them on their Instagram social media accounts. Plaintiffs did not claim that Instagram directly infringed their copyrights by showing the shared images, but rather relied on a theory of secondary liability premised on direct infringement by third-party websites. Plaintiffs claimed that Instagram’s embedding tool, which enables third-party websites to display photographs or videos posted to an Instagram account, made it secondarily liable for the direct infringement occurring through such third-party display. Instagram moved to dismiss the case, and the district court granted the motion.
The district court held that no underlying direct infringement existed upon which to support the secondary liability claim against Instagram. As the court explained, the Ninth Circuit adopted a test to determine when a website that displays an image has violated the copyright owner’s exclusive display right in Perfect 10, Inc. v. Amazon.com, Inc. Under the so-called server test, an image is “fixed” in a tangible medium of expression and therefore constitutes a “copy” for purposes of the Copyright Act when it is stored on a computer’s server. Therefore, if a website publisher does not store an image on its own server, it does not communicate a copy capable of violating the exclusive display right. The district court’s reasoning hinged on the fact that third-party websites utilizing the Instagram embedding tool to show images posted to Instagram accounts do not store those images on their own servers. Those images are at all times stored on Instagram’s servers and only made visible on third-party websites. The court thus concluded that the images on third-party websites were not fixed and could not constitute a copy capable of infringing under the Copyright Act.
Plaintiffs argued that the server test should not apply here, relying upon several recent district court cases decided in other circuits that have declined to apply the server test to embedded Instagram posts, including the Southern District of New York’s decision in Nicklen v. Sinclair Broadcasting Group, Inc. (see our summary of that case here). The court, rejected this argument, however, stating that it “is not free to ignore Ninth Circuit precedent” and “must faithfully apply Perfect 10 absent a contrary Ninth Circuit or Supreme Court ruling.”
The court also rejected plaintiffs’ argument that the Supreme Court’s 2014 decision in American Broadcasting Cos. v. Aereo, Inc. precluded application of the server test. In Aereo, the Supreme Court held that a service permitting subscribers to view live and time-shifted streams of over-the-air television on internet-connected devices violated the Copyright Act. As the district court explained, Aereo involved interpretation of the exclusive public performance right in 17 U.S.C. § 106(4)—not the exclusive display right at issue in Perfect 10—and therefore did not impact application of the server test.
In light of binding Ninth Circuit precedent directing that no underlying direct infringement had occurred, the district court concluded that plaintiffs could not maintain their claims for secondary copyright infringement, warranting dismissal. The court, however, did grant plaintiffs leave to amend their complaint.
Summary prepared by Frank D’Angelo and Jordan Meddy
