Last week, the U.S. Court of Appeals for the Ninth Circuit issued a precedential decision in Hunley v. Instagram, LLC, No. 22-15293 (July 17, 2023), affirming dismissal of the plaintiff photographers’ indirect copyright infringement claims against Instagram because no direct infringement occurred as a matter of law under the Server Test articulated in Perfect 10 v. Amazon, 508 F.3d 1146 (9th Cir. 2007).
Under the Server Test, websites do not directly infringe the display right by showing embedded images unless the images are also stored on the website’s servers. The Copyright Act’s definition of display requires showing a fixed copy; in the computer context, a copy is the server or hard drive location where an image is stored. When images are not stored on a website’s servers the website does not have a copy of the image to display and therefore does not directly infringe the display right.
In the case at hand, photographers’ copyrighted images, originally shared on Instagram, were embedded into third-party websites without permission. Embedding allows websites to show images using text-based instructions directing a web browser to retrieve images from specified server locations. Here, the third-party websites’ embedding instructions directed web browsers to retrieve the copyrighted images directly from Instagram’s servers. Importantly, the images were never stored on the websites’ servers. The photographers claimed Instagram indirectly infringed their exclusive display rights by allowing third-party websites to directly infringe by embedding images without the copyright owner’s permission. The district court dismissed because the direct infringement claim underlying Instagram’s alleged indirect infringement failed under Perfect 10’s Server Test. The photographers appealed.
The Ninth Circuit affirmed. The Court explained that application of the Server Test is not limited to the search engines at issue in Perfect 10, but instead articulates the rules that apply depending on the method a website uses to show images. The Court rejected the photographers’ assertion that the Supreme Court’s intervening decision in ABC, Inc. v. Aereo, Inc., 573 U.S. 431 (2014), was inconsistent with the Server Test, distinguishing that case because it involved performance rights, not display rights. Direct infringement of a performance right can occur without a copy existing on the infringer’s servers, but the same is not true of the display right, regardless of user perception.