Instagram isn’t liable for copyright infringement when images are embedded on third-party websites, the US Court of Appeals for the Ninth Circuit ruled on Monday (via Torrent Freak). The decision came in response to a class action lawsuit filed by two photographers, Alexis Hunley and Matthew Brauer, who accused Instagram of violating copyright laws by enabling Time and BuzzFeed News to embed their copyrighted photos in online articles.
In 2016, Time published an article titled “These Photographers Are Covering the Presidential Campaign on Instagram,” which included Brauer’s embedded Instagram photo of Hillary Clinton. BuzzFeed News similarly posted an embedded photo taken by Hunley in its 2020 article about the Black Lives Matter protests.
The “server test” affirms a website isn’t liable as long as the copyrighted work isn’t stored on its server
However, Hunley and Brauer argued BuzzFeed News and Time embedded these posts on their websites without obtaining the proper license. The pair accused Instagram of secondary copyright infringement as a result, with Hunley alleging that Instagram “intentionally and brazenly encouraged, aided and induced” third-party websites to embed copyrighted images “without making any effort to control or stop the rampant infringement.”
The court ultimately ruled that Instagram couldn’t be held liable for secondary copyright infringement in this case, as it found that “embedding a photo does not ‘display a copy’ of the underlying images.” In its ruling, the court cited 2007’s Perfect 10 v. Amazon, a landmark case that established the “server test,” which affirms that a website can’t be held accountable for infringement as long as the copyrighted work isn’t stored on its server.
While the server test has saved numerous websites, including Google and Mashable, from legal trouble over embedded images, some courts have pushed back on the concept in recent years. In 2018, a New York district court judge interpreted the server test differently and ruled that embedding a tweet on a webpage could count as copyright infringement. Meanwhile, US District Judge Jed Rakoff rejected the server test in a ruling last year, stating that the rule is “contrary to the text and legislative history of the Copyright Act.”