Last week, the U.S. District Court for the Northern District of California issued an opinion in Hunley et al. v. Instagram, LLC, 3-21-cv-03778 (Sept. 17, 2021), addressing Instagram’s liability for copyright infringement based on a third party’s use of an embedded photo on a website.
Two photographers who post their photographs on Instagram filed suit against Instagram for copyright infringement. Instagram is a social media platform that enables users like the Plaintiffs to share photographs and videos. In the lawsuit, Plaintiffs claimed that Instagram’s “embed” feature, which enables third parties to embed copyrighted photos and videos posted to an Instagram account, violates their display right under the Copyright Act. Instagram moved to dismiss the complaint, asserting that there was no direct infringement and, therefore, Instagram could not be liable for secondary infringement.
The parties agreed Instagram was not a direct copyright infringer. The parties also agreed that Plaintiffs must show “some underlying direct infringement by a third party” in order to assert secondary liability claims against Instagram. Further, the parties agreed that third parties using the Instagram embed feature did not store any photographs or video on their own websites and that the images were stored by Instagram.
The dispute centered on the definition of copyright display. The Court relied on the Ninth Circuit decision in Perfect 10, which created the “server test.” Under the server test of Perfect 10, images that are not stored by the infringer are not fixed in any tangible medium of expression and, thus, are not display copies of the copyrighted work. Simply put, if the accused infringer does not store the image on its server, it does not infringe.
Plaintiffs argued Perfect 10 did not apply because it was a search engine case and reflected a “highly fact-driven . . . policy judgment.” The Court disagreed. The Court held that Perfect 10 relied on the “plain language of the statute” to craft a test for “when a computer displays a copyrighted work.” The Court further rejected Plaintiffs’ arguments about out-of-circuit cases that reject the Perfect 10 server test.
Applying the Perfect 10 decision to the case, the Court found there was no direct infringement because the third-party websites did not store the photographs. Because there was no direct infringement, the Court held Instagram could not be liable for secondary infringement and granted Instagram’s motion to dismiss.