Facts

Owned by Meta, formerly Facebook, Instagram is a photo and video-sharing social networking service. One of its tools, the "embedding" tool, allows third-party websites to include instructions that cause users' browsers to load a portion of the Instagram website "embedded" within the third parties' web page. Generally, "embedding" involves copying the unique HTML (hypertext markup language) code assigned to a photo or video published to the Internet, and then that code is inserted into a target webpage or social media post so that the photo or video appears "embedded" within the target post. As such, third parties can copy the HTML code of an Instagram user's post and paste it into a third party's website, resulting in the photo or video that was posted to that Instagram user's account to be embedded on the third party website. Alexis Hunley and Matthew Scott Brauer both have Instagram accounts. They are the owners of copyrighted works that they uploaded to Instagram but were also embedded from Instagram. For Hunley, her copyrighted photo was embedded into a Buzzfeed post about the 2020 George Floyd protests. For Brauer, Time.com embedded his copyrighted photo from his Instagram account into a Time.com post about the 2016 presidential election. On May 19, 2021, they filed a class action lawsuit against Instagram.

PLAINTIFFS' CONTENTIONS: Plaintiffs, Hunley and others, alleged that Instagram is secondarily liable for the third parties' copyright infringement in that it encouraged, induced and facilitated third parties to commit copyright infringement. Hunley and the other Instagram users contended that when a third party embedded a copyrighted photo or video from an Instagram user's account to that third-party's website without a license, permission, or valid legal defense from the copyright owner or Instagram, this act constitutes infringement of the copyright owner's exclusive display right under the Copyright Act, and is therefore in violation of the law. Instagram obtains a direct financial benefit from the increased traffic, impressions, clicks and views monetized through advertising revenue on Instagram. Thus, this practice not only dilutes the market for licensing fees, but it also seeks to bypass the intent and spirit of copyright laws and diminish and squelch American entrepreneurship.

DEFENDANT'S CONTENTIONS: Defendant Instagram argued that plaintiffs' theory of secondary liability failed. Under binding Ninth Circuit precedent, an internet company can be found to directly infringe a copyright owner's rights only if it hosts and transmits the copyrighted material from its own servers: the so-called server test. Instagram hosts and transmits the content, which means the third-party sites cannot be liable for copyright infringement. Because these third parties could not be liable for copyright infringement because is no underlying direct infringement, then Instagram could not be secondarily liable. As to Instagram's possible direct infringement, anyone who signs up for Instagram agrees to its Terms of Use, which grants Instagram "a nonexclusive license to publicly reproduce and display the content the user uploads and posts to their account."

Result

The court granted defendant Instagram's motion to dismiss without leave to amend. It reasoned that under the 2007 Ninth Circuit court ruling in *Perfect 10, Inc. v. Amazon.com, Inc*., copyright infringement requires that the "copy" of the image be embodied (that is *stored*) in a computer's server, hard disk or other storage device. Where the photographic images are not *stored*, then the alleged infringer does not have a copy of the image for purposes of the Copyright Act. Here, plaintiff Hunley acknowledged that third parties using the embedding tool display the copyrighted photos and videos without storing them on their own servers or other storage devices. The court then suggested that Hunley present the arguments to the Ninth Circuit.

Other Information

In December 2021, Instagram added an option to turn off the embed tool.