The server test is alive and well—at least in the Ninth Circuit—and shields the embedding of social media posts from copyright infringement liability.
In a published opinion (read here), the Ninth Circuit Court of Appeals today affirmed the dismissal of a closely-watched class action lawsuit alleging that Instagram induced and contributed to “widespread copyright infringement” by allowing third parties to embed photos from public Instagram feeds onto their own websites.
The Court held in Hunley v. Instagram that the plaintiff photographers’ lawsuit was foreclosed by its 2007 decision in Perfect 10, Inc. v. Amazon, Inc., which first established the server test in a case involving the display of thumbnail images in Google image search results. The Ninth Circuit panel recognized that it was bound by Perfect 10 in the absence of an en banc reversal of that case or a contrary determination by the U.S. Supreme Court.
Under the server test, providing HTML instructions that direct a user’s browser to an image hosted on Instagram’s servers isn’t equivalent to displaying a copy of the image. Therefore, there’s no direct infringement. Without an act of direct infringement, Instagram can’t be liable for secondary infringement.
As I’ve written before, the server test focuses on what’s actually going on behind the scenes when a website uses embed code to instruct a visitor’s web browser to fetch the contents of a post from Instagram’s servers. Contrast this to the approach taken by a handful of Southern District of New York judges who have rejected the technical distinctions underlying the server test in favor of an approach that focuses on how users actually perceive the content being displayed.
Last year, for example, the court in McGucken v. Newsweek LLCheld that Newsweek displayed McGucken’s photograph of a rare ephemeral lake by embedding the photo from McGucken’s Instagram page without his permission.
But as a technical matter, that just isn’t correct. Newsweek didn’t host, possess or “display” anything other than a piece of embed code.
My act of “embedding” is no different than if I were to use a hyperlink to the same post. In both cases, it’s your computer or phone that’s doing the displaying, via Instagram’s server. If either Instagram or I were to delete the post—or if I disabled the embed feature on my Instagram account—the video would no longer appear. (The Ninth Circuit distinguished embedding from hyperlinking as a functional matter, recognizing that embedding is, from the user’s perspective, entirely passive. But legally, neither implicates copyright’s display right.)
This won’t be the last word for Hunley. Count on the plaintiffs seeking en banc review from the Ninth Circuit or, failing that, certiorari to the U.S. Supreme Court. But for now, the server test is safe—at least in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.
Here’s a copy of the Court’s opinion, courtesy, I might add, of good ol’ embed code:
I haven’t read the decision, but do I understand it correctly to only evaluate the right of reproduction? Do the plaintiffs ever argue right of display? Why isn’t it an unlawful display?
Yes, the court’s opinion does deal extensively with the plaintiffs’ argument that embedding violates the display right, but concludes that any display is from Instagram’s server, not the embedding website’s server.
I think that’s where it goes wrong and the NY district courts may have it right. I’ve never been a fan of the “server test.” While it has the appeal of simplicity, what audience member actually knows that the copy is located on a different server? At this point many resources on a web page may be from different servers, even the fonts. And the embedder is getting all of the benefit of the use without any of the burden.
3 comments
I haven’t read the decision, but do I understand it correctly to only evaluate the right of reproduction? Do the plaintiffs ever argue right of display? Why isn’t it an unlawful display?
Yes, the court’s opinion does deal extensively with the plaintiffs’ argument that embedding violates the display right, but concludes that any display is from Instagram’s server, not the embedding website’s server.
I think that’s where it goes wrong and the NY district courts may have it right. I’ve never been a fan of the “server test.” While it has the appeal of simplicity, what audience member actually knows that the copy is located on a different server? At this point many resources on a web page may be from different servers, even the fonts. And the embedder is getting all of the benefit of the use without any of the burden.