Instagram just filed a motion to dismiss a class-action lawsuit brought against it by a group of photographers and the argument it uses could push what has carried it this far to its limits.
Basically, the lawsuit is about Instagram’s culpability when accounts steal copyrighted images that are subsequently featured on other websites via the platform’s embedding option.
Photographers who have had their work stolen argue that this basically makes Instagram partially responsible for the infringement of their rights. It also gives websites that feature said embeds the ability to dodge liability as well.
An argument those websites have used is that they were relying upon the posting account’s sublicensing agreement with Instagram, which doesn’t exist.
Instagram’s dismissal doesn’t hone in on the sublicensing question but instead notes that embedding an image doesn’t mean that the image itself is present on the website in which it is featured. Rather, embedding is part of a coded process that fetches the content on display in the user’s account that is linked to that address.
This is an important distinction because an earlier case between Google and adult entertainment company Perfect 10 ended with the ruling that, because Google Image Search was showing pictures of the models stored on Perfect 10’s website server and not on Google’s own servers, Google was not liable for copyright infringement.
Reuters reports: “The 9th Circuit’s now well-established ‘server test,’…dooms the photographers’ case. Under the server test, it said, the online publishers that embedded Instagram posts cannot be directly liable for infringement because they didn’t host the photos in the posts. And with no direct liability, Instagram said, it can’t be liable for enabling infringement.”
It’s important to note that there isn’t unanimity on the so-called “server test” among federal courts. Even so, it is being put to the test right now in the 9th circuit and the outcome of that could have a huge impact for photographers and Instagram depending on how it goes.
What do you think of Instagram’s argument about embedding images? Does that absolve them from any liability in copyright? Let us know what you think of Instagram’s legal argument in the comments below.
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