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Every second of every day, social media and internet users repost or link to copyrighted content from other websites, or other posts. It may seem strange to even think about whether such use might be found to be other than fair. But viewed from the content owner’s perspective, that use seems much less than fair as platforms are profiting from our constant churn of copyrighted content without paying anything to the original creators of such content. So a pair of photographers decided to sue Instagram in a proposed class action, alleging that Instagram was liable for copyright infringement because it permits other sites and users to “embed” the photographer’s Instagram content, which contained their copyrighted photographs.

“Embedding” content is like “linking” to content, with the difference being that a link only contains the URL (which then has to be clicked on by a user) whereas embedded content displays the actual content found at the URL. But while it may look like such embedded content is showing up in your post or on a website, that is actually a trick of technology that lets the user see the content hosted at the original location within the confines of the new post or website – like looking through a window. The embedded content continues to reside only at the original location where it can be changed, blocked, or taken down by the host. That is important, as the embedding website or post does not store a copy of the underlying image and the host website or post maintains complete control over what is retrieved.

And that distinction proved crucial to the Ninth Circuit’s decision this week in Hunley v. Instagram. There, the Ninth Circuit considered the photographer’s arguments (joined by a host of amicus parties) for holding that embedding in this case could be copyright infringement. The photographers agreed that Instagram did not directly infringe their copyrights, but alleged that the websites that that embedded their Instagram posts containing copyrighted content did infringe their copyrights such that Instagram should be held liable for inducing infringement, contributing to infringement, and vicarious copyright infringement. In particular, the photographers argued for limiting or distinguishing the Ninth Circuit’s 2007 decision in Perfect 10 v. Amazon, in which the Ninth Circuit held that Google’s and Amazon’s inclusion of embedded images did not infringe on any copyrights in those images. In that latter case, the Ninth Circuit adopted what has become known as the “server test,” in which infringement only occurs if a copy of the image is stored on the accused infringer’s computer server or other storage device.

The photographers argued that social media platforms are different from the search engines at issue in Perfect 10, and cited a number of district court cases from other circuits that have relied on that distinction. The photographers argued that Perfect 10 is inconsistent with the copyright act because it allegedly requires an infringer to violate the rightsholder’s reproduction right before the display right can be violated and adopted an unnecessarily restrictive reading of the display right. They argued that Perfect 10 had been effectively overruled by the Supreme Court’s decision in ABC v. Aereo, in which the Supreme Court held that a company that allowed subscribers to stream over-the-air broadcasts (by picking them up on individual antennas and transmitting them to the subscriber over the internet) publicly performed such broadcasts and thus infringed the broadcasters’ copyrights. The photographers and their amici raised numerous policy concerns with the effect of Perfect 10, which allows social media platforms to profit from their copyrighted work without paying royalties.

The Ninth Circuit rejected all of these arguments. But in the final pages of the opinion, the panel noted that as “citizens and internet users, we too are concerned with the various tensions in the law and the implications of our decisions, but we are not the policy makers.” The panel all but invited en banc review, or Supreme Court review. Given the importance of the issue to both rightsholders and internet users, it seems likely that this will not be the last word from the courts on this subject.

This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.

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