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The next wave in litigation over embedded social media posts is a copyright infringement suit against Instagram on behalf of pretty much anyone who has used the app and had their content aggregated elsewhere without permission.
Fights over shared social content started back in 2017, before TikTok made people forget about Snapchat, when a photo of Tom Brady sparked lawsuits against a handful of media outlets. Someone took a pic of the NFL quarterback in the Hamptons with the general manager of the Boston Celtics and posted it on Snap; someone else uploaded a screen shot to Twitter, where it went viral; and then news outlets started embedding those tweets in stories about whether Brady was helping the NBA team recruit star Kevin Durant.
The man who took the photo, Justin Goldman, sued the media organizations — and a New York federal judge agreed that embedding the Tweets containing the pic amounted to copyright infringement. (An appeals court declined to take up an interlocutory appeal, and eventually it settled.)
Now, the world’s most popular photo sharing app is itself being sued.
Two users on Wednesday sued Instagram, claiming its embed feature is designed to flout copyright laws to make money for its parent, Facebook.
“Instagram misled the public to believe that anyone was free to get on Instagram and embed copyrighted works from any Instagram account, like eating for free at a buffet table of photos by virtue of simply using the Instagram embedding tool,” writes attorney Solomon Cera in the complaint, which is embedded below.
The suit was filed on behalf of a proposed class that includes any Instagram user who from July 1, 2013 to present uploaded content to the app that was embedded elsewhere without permission. They’re suing for inducement of copyright infringement, and contributory and vicarious copyright infringement.
“Instagram is the beneficiary of millions of copyrighted photos and videos uploaded by its users,” writes Cera. “Defendant reaps billions of dollars annually from hosting, tracking, encouraging, handling, and causing a significant number of such photos and videos, which include hundreds of thousands or even millions of registered copyrighted works, to be embedded and therefore infringed by third parties who used the embed tool.”
Cera argues that Instagram also misled third parties into thinking they didn’t need a license or permission to embed the posts — that is, until a Facebook spokesperson responded to an inquiry from Ars Technica last summer and said this: “While our terms allow us to grant a sub-license, we do not grant one for our embeds API. Our platform policies require third parties [such as BuzzFeed or Time or Mashable] to have the necessary rights from applicable rights holders. This includes ensuring they have a license to share this content, if a license is required by law.”
The plaintiffs are also unhappy that Instagram is able to track third-party embeds, but users can’t, which leaves them unable to easily go after infringers.
Instagram has not yet responded to a request for comment.
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