Hunley v. Instagram, LLC

Background

Alexis Hunley and Matthew Brauer sued Instagram, LLC for copyright infringement. They did not claim that Instagram directly infringed their exclusive right to display copyrighted photographs and videos by showing content shared on Instagram. Instead, they claimed that Instagram’s embedding tool allowed third-party websites to display copyrighted photographs and videos posted to Instagram, making Instagram secondarily liable for those third parties’ alleged infringement.

The parties agreed that Instagram was not a direct infringer and that a secondary-liability claim required underlying direct infringement by a third party. They also agreed that third parties using the embedding tool did not store the embedded images or videos on their own servers or other storage devices; Instagram stored them.

Court’s analysis

The court applied the Ninth Circuit’s “server test” from Perfect 10, Inc. v. Amazon.com, Inc. Under that test, an image is fixed in a tangible medium when it is stored on a computer server, hard drive, or other storage device. A website does not communicate a copy of an image or video, and therefore does not violate the copyright owner’s exclusive public-display right, when the website merely embeds content stored on another server.

The court rejected Hunley’s argument that the server test applied only to search engines or should be limited to the facts of Perfect 10. The court stated that Perfect 10 relied on the Copyright Act’s statutory language and did not limit its test to search engines or other specific circumstances. The court also rejected Hunley’s argument that the Supreme Court’s decision in American Broadcasting Cos. v. Aereo, Inc. displaced the server test. According to the court, Aereo addressed the separate public-performance right and different statutory language, so it did not clearly conflict with Perfect 10’s interpretation of the public-display right.

Applying the server test, the court concluded that third parties embedding the images and videos did not fix the copyrighted works in a tangible medium and therefore did not display copies of them. Because the complaint lacked the required underlying direct infringement, it could not support secondary liability against Instagram.

Disposition

The court concluded that oral argument was unnecessary and granted Instagram’s motion to dismiss. The order stated that Hunley could file an amended complaint within 30 days of the order. The opinion does not state whether an amended complaint was later filed.