Instagram has defeated a lawsuit from users unhappy with its embedding feature, as a California federal judge has dismissed their suit without leave to amend.
Two photographers, Alexis Hunley and Matthew Scott Brauer, in May 2021 sued Instagram on behalf of themselves and any other users who since July 1, 2013 had uploaded content to the app that was embedded elsewhere without permission. They claim the feature gives users the impression they’re “eating for free at a buffet table of photos” and facilitates third parties committing copyright infringement.
Instagram in July filed a motion to dismiss the suit, arguing that users can’t sue them for secondary liability because that requires someone else being liable for direct copyright infringement and that is precluded by the underlying tech and controlling case law.
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At the center of the issue is the “server test,” which was established by the 9th Circuit U.S. Court of Appeals in 2007 in a lawsuit brought against Google over image thumbnails by a company called Perfect 10. Under the test, Instagram argues, “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.” Instagram hosts and transmits the content, which means the third-party sites can’t be liable for copyright infringement. And, anyone who signs up for Instagram agrees to its Terms of Use, which grants “a nonexclusive license to publicly reproduce and display the content the user uploads and posts to their account.”
U.S. District Judge Charles Breyer in September granted Instagram’s motion to dismiss, finding the plaintiffs hadn’t shown “underlying direct infringement by a third party.” Breyer noted that the plaintiffs may believe the “server test misinterprets the Copyright Act” but said that argument needs to be directed at the 9th Circuit U.S. Court of Appeals or the U.S. Supreme Court. Still, he gave the users a chance to amend their complaint.
They filed an amended complaint in October, Instagram filed another motion to dismiss in November and on Tuesday Breyer again sided with the social media site — and this time he granted the motion without leave to amend.
“Hunley may be right that viewers ‘do not know or care that the photo or video is located on the Instagram server,’ but the problem for Hunley is that Ninth Circuit law does,” writes Breyer in a three-page order, which is embedded below. “The Court concludes that the deficiency in Hunley’s first two complaints cannot be cured, as it is undisputed that the third-party infringers do not store the photos on their own servers … As this is the only fact that matters, amendment would be futile.”
