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Instagram received a clean chit in its Embedding Tool Copyright Case.

Legal Correspondent: Praveen Kumar

October 12, 2021: Recently, a lawsuit filed by a group of photographers was recently dismissed by San Fransisco federal court. They claimed that Instagram's embedding tool allowed its users to infringe on their copyrights.The U.S district said that the "Instagram feature doesn't violate the photographers' exclusive right to display the pictures publicly because third-party websites that embed the images don't store their copies of them."

The judgment was obtained via the divisive server test used by the 9th Circuit to determine internet copyright infringement. Under this criteria, a website can only breach the owner's display right if it stores a copy of the copyrighted work on its server. But, in July, a Manhattan Federal Judge named Jed Rakoff became the second judge in that court to reject the server test. "But unlike the U.S. District Court for the Southern District of New York, this Court is not free to ignore Ninth Circuit precedent," Breyer said.

Attorney James Bartolomei of the Duncan Firm represented the photographers' claims in court. According to their lawyer, photographers are likely to appeal the ruling in the future. Instagram's parent firm Facebook (now 'META'), was represented by Durie Tangri attorneys RageshTangri and Allyson Bennett. They declined to comment on the subject for the time being.

Some well-known photographers, including Alexis Hunley and Matthew Brauer, headed the lawsuit. The class-action complaint was filed in May. It appeared to imply that Instagram's embedding scheme encouraged widespread copyright infringement, with websites such as Buzzfeed, HuffPost, and Mashable serving as its platform. Infringement is encouraged since users are enticed to publish their photos on such websites, but no compensation is paid to the copyright holders.

Instagram, as expected, dismissed the lawsuit in July, arguing that it could only be held liable for secondary infringement if the sites directly infringed and that because they do not host or transmit an image in any form from their servers, they also passed the server test.

Breyer backed Instagram in his decision that mere usage of the embedding tool doesn't make them copyright law violators if we analyze through the server test. "Because they do not store the images and videos, they do not 'fix' the copyrighted work in any 'tangible medium of expression,'" Breyer said. "Therefore, when they embed the images and videos, they do not display 'copies' of the copyrighted work."


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