A major case in the United States could determine the fate of embedding video and images from social media platforms like Instagram but the final result will be delayed pending a rehearing “en banc.”
As Reuters explains, this would involve a hearing in front of a panel of 11 randomly selected judges rather than the whole appellate court. The original 3-panel judge sided with Instagram against the photographers and maintained what is referred to as the “server test” which originated from a case against Amazon brought by Perfect 10, Inc. and the standard basically says that websites are not liable for copyright infringement for images hosted on another platform’s server.
That case involved models to which Perfect 10, Inc. owned the copyright of images featured in Google image search results. Because the presentation wasn’t a fixed display of the images, Google was not engaged in copyright infringement as the images it linked to were those featured on Perfect 10, Inc.’s own servers.
There’s also the argument about how embedding images is central to much of the infrastructure of many social media websites such as Pinterest but that really shouldn’t matter in cases of copyright infringement if that occurs. One of the central issues in the cases brought before the court here is when news outlets and other major websites use images from Instagram in order to tell a narrative around a major headline event.
Prior to embedding an image from someone’s Instagram, agencies would either have to obtain permission and/or pay a fee to use it. Embedding an image just acts like that’s not a thing, some might argue. It’s already hard enough to make a living as a creator and embedding is just another way that is happening these same critics highlight.
Any thoughts you might have on embedding images and video and the potential for copyright infringement when doing that are welcome in the comments below.
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