Thread by @MarkJKings

1. I’m going to talk a little bit about the Instagram copyright infringement lawsuits. That is, not lawsuits vs. Instagram, but lawsuits by photographers against other people who embed their Instagram photos. A brief thread. About 22 tweets.

2. There have been numerous copyright infringement lawsuits against websites that embed photos from Instagram, including this one:

https://twitter.com/MarkJKings/status/1321093754829393920

3. Although we’ve learned a few things from court decisions, there are no clear, bright lines. We probably won’t have any unless there’s a consensus in the federal courts or the Supreme Court takes them on.

4. There are three or four defenses that typically arise specific to embedding.

5. The first is: is embedding a photograph without authorization copyright infringement? Specifically, does it violate the copyright holder’s display right under the Copyright Act?

6. Some argue that embedding doesn’t violate the display right because the photograph is hosted by another server. This is known as the “server” test.

7. I think most of my tweeps don’t think much of the server test. It makes sense only on a technical and academic level, but not on a practical level. It’s a standard for people who like to say things like “judges don’t know anything about computers.”

8. Under the server test, it could violate the display right to cut and paste someone’s photo, to your website, or to download and upload it. But embedding the same photograph from Instagram wouldn’t.

9. The problem is that the display isn’t any different when you’re embedding than when you’re using the photograph another way. The person looking at your website sees the same thing.

10. In Goldman v. Brieitbart News, the Southern District of New York rejected the server test as the standard for whether the copyright display right is violated.
law.justia.com/cases/federal/…

11. But the Ninth Circuit (which includes California federal courts) recognized the server test in Perfect 10 v. Amazon.

12. The second defense is license. Defendants have argued that, by agreeing to Instagram’s terms and uploading your photos for public view, you’re giving a license to Instagram to sublicense it, and Instagram in turn sublicenses any third party who uses Instagram.

13. This argument worked in Sinclair v. Davis for a minute. But then the court had to vacate the opinion.
scribd.com/document/46682…

So what’s the problem?

14. The problem is that Instagram disagrees. It said that under its terms of use, they aren’t granting licenses for its users to embed other people’s photos on their websites. They’d still have to get a license from the copyright holder.

15. When you sign up for Instagram or any other social media service, you’re agreeing they have a broad license to use your photos. But they do that to cover their ass. They’re not sublicensing your works to everyone.

16. Is it possible that, notwithstanding what Instagram says about its own terms of use, a court would still rule that third parties have a license to embed? I suppose.

17. Keep in mind that application of this argument will depend on any social media site’s terms of use at the time. So there’s no one catchall answer because terms of use can vary, and media sites can change them when they want to.

18. Agence France-Presse tried a similar argument in AFP v. Morel. It argued that by posting his photograph on Twitter, the photographer granted third-party licenses for AFP to use. That wasn’t even an embed. That argument didn’t work.
scribd.com/document/12050…

19. Volvo is making a similar argument in a pending lawsuit. But’s it even more problematic because they’re applying the logic to a right of publicity claim in addition to a copyright.

https://twitter.com/MarkJKings/status/1293910267722514432

20. The third possible defense is fair use. And that’s really the third and fourth arguments, because there’s a defense related to embedding specifically, and a defense based on the use of a photograph that doesn’t depend on how you displayed it.

21. I’m not discussing the defenses that we know won’t work. Your photos don’t become public domain by posting on the internet. And you don’t assign your copyrights to Instagram or Facebook.

22. I repeat that the law isn’t settled on any of these defenses. And regardless, they are often dependent on specific facts. So website owners are taking risks when they embed photographs without the copyright holder’s express permission.