Instagram Defeats Copyright Claim Over Its Embedding Feature-Hunley v. Instagram
“In-line linking” uses the Internet’s magic to let a web page incorporate a file, such as a photo or video, into a page’s display without actually hosting it. In 2007, in Perfect 10 v. Amazon, the Ninth Circuit ruled that direct liability applied, if at all, to the server hosting the file (the “server” test), not the third-party website in-line linking the file (an “incorporation” test).
The plaintiffs brought a class action lawsuit against Instagram for its “embedding” feature, which lets third-party websites incorporate (via in-line linking) Instagram-hosted photos and videos uploaded by Instagram’s users. In a weird turn, the plaintiffs only pursued a contributory copyright infringement theory against Instagram, where the incorporating websites are the direct infringers and Instagram facilitates their infringement.
For reasons unexplained in the opinion, the court says the “parties agree that Instagram is not a direct copyright infringer.” Perhaps the plaintiffs were concerned that Instagram has insufficient “volition” for the copies made by its servers; or perhaps Instagram can claim the 512 safe harbor for any embedded user-uploaded files (but the 512 safe harbor also applies to contributory infringement, so this theory isn’t very plausible).
[Update: I got this cleared up. The plaintiffs gave Instagram a license to display the photos. Which makes their lawsuit even more bizarre].
However we got here, the plaintiffs positioned themselves in direct conflict with the Perfect 10 v. Amazon precedent, because in the plaintiffs’ legal theory, Instagram is the server (so it would be the direct infringer in that equation) and the purported direct infringers, the in-line-linking websites, are the incorporators. That makes this case an unambiguous attempt to reverse Perfect 10 v. Amazon. The district court can’t and won’t do that: “this Court must faithfully apply Perfect 10 absent a contrary Ninth Circuit or Supreme Court ruling.”
The court rejects the plaintiffs’ uninspired attempts to get around the Perfect 10 precedent:
- The plaintiffs claim the Perfect 10 ruling was limited to its facts involving the Google Image search results. The court says that’s “wrong.”
- The plaintiffs invoke the recent Nicklen case, which said Instagram’s embed feature directly infringed the plaintiff’s display right. This court says that the New York court could disregard the Perfect 10 precedent, but it can’t.
- The court distinguishes Aereo: “Aereo addressed different statutory language, relevant to the performance right, and acknowledged that this other language was ambiguous. To resolve that ambiguity, Aereo relied on legislative purposes unique to the performance right.”
The court tells the plaintiffs to take up the matter with the Ninth Circuit. I’m sure they will. In light of the troubling Goldman and Nicklen cases from New York, we could also have a circuit split brewing, and that could drive this issue to the Supreme Court. Fun times.