Judge Sides With Instagram In Copyright Fight Over Embedding Tool

Siding with Facebook's Instagram, a federal judge in California dismissed a complaint by photographers who alleged that the company's embedding tool enabled copyright infringement by outside publishers.

U.S. District Court Judge Charles Breyer in the Northern District of California said in a ruling issued late last week that web publishers don't infringe copyright by embedding Instagram images, and therefore Instagram's tool don't contribute to copyright infringement.

The ruling stems from a lawsuit filed in May, when photographers Alexis Hunley and Matthew Scott Brauer alleged in a class-action complaint that Instagram induced third parties to “commit widespread copyright infringement.”

“This scheme was accomplished by using Instagram’s 'embedding' tool to display copyrighted works of Instagram users on third-party publisher websites, thereby vastly extending Instagram’s reach across the Internet, but without appropriately compensating the copyright holders,” the complaint alleged.



“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,” Hunley and Brauer added. “Instagram, by acts of commission or omission, also misled third parties to believe that they did not need to obtain a license or permission from the copyright owner to embed those works.”

Breyer said in a written opinion that the 9th Circuit Court of Appeals, which covers California, already decided that web publishers don't infringe copyright by displaying images that are stored on other companies' servers.

That earlier 9th Circuit ruling stemmed from a lawsuit brought by adult entertainment company Perfect 10 against Google. In that case, the appellate court ruled that Google's search engine didn't infringe copyright by creating "in-line" links to outside pages that contained unlicensed photos. Those in-line links allowed users to view the photos without leaving Google, but the images themselves remained on outside companies' servers. The decision hinged on the fact that the infringing images were not stored on Google's servers.

“This Court must faithfully apply Perfect 10 absent a contrary Ninth Circuit or Supreme Court ruling,” Breyer wrote.

The ruling allows Hunley and Brauer to amend their claims and bring them again. 

At least two federal judges in New York have rejected that 9th Circuit decision and said websites that embed copyrighted images might infringe copyright, regardless of whether the images are stored on those sites' servers.

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