Photographers Appeal for Reconsideration of Copyright Liability for Embedded Content
In a recent development, two photographers have filed a petition urging the Ninth Circuit to review its decision in the case of Hunley v. Instagram. The court had ruled that Instagram could not be held liable for secondary copyright infringement related to third-party embedding of Instagram posts. The ruling reaffirmed the server test established in a previous Ninth Circuit decision, Perfect 10 v. Amazon. According to this test, websites are shielded from secondary liability under the Copyright Act if the allegedly infringing content is hosted by a third party.
The practice of embedding content allows site operators to display content on their platforms that is actually stored on a server controlled by a third party. Embedded content is encountered by internet users on a daily basis and eliminates the need to follow external links to view the referenced content. The key distinction between embedded content and content posted by site operators is that embedded content is hosted and served by a third-party site.
The issue of copyright infringement arose in 2004 when Perfect 10 sued Google and Amazon for direct copyright infringement due to the use of thumbnail images stored on Google’s servers. It also alleged secondary copyright infringement based on Google’s display of full-size versions of protected images served from various third-party sites. The district court adopted the server test, focusing on whether the alleged infringer stored a copy of the protected image on its servers and provided it directly to users. The Ninth Circuit later affirmed this test in 2007, stating that if an alleged user does not store the infringing content on its servers, it cannot be held secondarily liable.
Since then, the Ninth Circuit has consistently applied the server test in cases of internet-based copyright infringement, and no circuit courts have disagreed with this approach. However, some district courts in the Second Circuit have rejected the server test. In the recent Hunley case, the Ninth Circuit was confronted with the issue of whether the server test was appropriate.
The plaintiffs, two photographers operating public Instagram accounts, claimed that the server test needed to be revisited, particularly in the context of social media. They argued that the test deprived copyright holders using social media platforms of remedies against secondary actors assisting in the display of copyright-protected works. Additionally, the plaintiffs challenged the focus on physical possession of the protected work, arguing that it was inconsistent with the Copyright Act. They also pointed to recent district court cases in the Southern District of New York that rejected the server test in the context of embedding.
Although the Ninth Circuit panel declined to overrule Perfect 10, it acknowledged inconsistencies between that decision and the Copyright Act. The court suggested that the plaintiffs could challenge the decision en banc, indicating that if Hunley disagreed with their legal interpretation, they could petition for a rehearing. The plaintiffs have now filed a petition for rehearing en banc, urging the Ninth Circuit to reconsider the server test.
An en banc hearing would involve a case being heard again before a randomly selected eleven-judge panel. It is relatively rare for a case to receive such a hearing. If the petition is denied, the plaintiffs would have the option to petition the Supreme Court to review the case. The outcome of this case could have significant implications for the internet ecosystem, as it could potentially alter the way websites reference third-party videos and images.
Various entities, including those in the generative AI space, would need to pay attention to the case’s developments. Companies developing generative AI tools that use third-party images or videos for training purposes would need to ensure compliance with copyright laws. Additionally, if the case were to reach the Supreme Court, it could signal a departure from clear-cut rules like the server test towards more context-specific rulings in copyright law.
This case highlights the ongoing debate between copyright holders and those supporting an open internet. While the server test provides a level of protection for websites and platforms, it could have negative implications for creators, such as photographers. The outcome of the Ninth Circuit’s en banc review could offer some clarity on this matter, but until then, all interested parties will have to closely monitor the case to gain a better understanding of the server test’s future.
