An opinion issued by Judge Charles R. Breyer late last week addressed the issue of whether an Instagram LLC tool that enables third party websites to display copyrighted photos or videos posted to an Instagram account renders it liable for derivative copyright infringement. The court ruled in the negative after finding that Ninth Circuit precedent interpreting terms of the federal Copyright Act squarely foreclosed that possibility.
The opinion recounted that two plaintiffs sued the social media heavyweight for copyright infringement in May in San Francisco, California. The ruling noted that as a threshold matter, the parties agreed upon several legal predicates underlying the plaintiffs’ contentions.
The litigants reportedly concurred that Instagram is not a direct copyright infringer, and that to assert secondary liability claims against Instagram, the plaintiffs must make some demonstration of underlying direct infringement by a third party. In addition, they agreed that “third parties using Instagram’s embedding tool do not store the images and videos embedded on their websites on their own servers or other storage devices, because Instagram stores those images and videos.”
As such, the plaintiffs alleged that third parties who violate Instagram users’ exclusive display rights create secondary copyright infringement. The court’s five-page opinion considered this single legal issue.
Judge Breyer ruled that under circuit precedent, third parties do not infringe users’ exclusive display rights because they do not store the images and videos, specifically “they do not ‘fix’ the copyrighted work in any ‘tangible medium of expression.’” As such, and under Ninth Circuit interpretation of the Copyright Act, when third parties embed users’ images and videos, they do not display “copies” of the protected work.
The court rejected arguments that the precedential test does not apply to this situation, noting that the plaintiffs are free to take up their belief that the “server test” misapprehends the law with the Ninth Circuit. Judge Breyer permitted the users to file an amended complaint within 30 days.
The plaintiffs are represented by Cera LLP, Law Offices Of Todd M. Friedman P.C., Duncan Firm P.A., and Hoben Law. Instagram is represented by Durie Tangri.
