Hunley v. Instagram, LLC

Background

Alexis Hunley and Matthew Scott Brauer sued Instagram, LLC. The plaintiffs alleged that Instagram provided an embedding mechanism allowing third parties to copy HTML code for an Instagram user’s post and place it on another website. The embedded photo or video would then be displayed on that website. The plaintiffs alleged that the third parties committed copyright infringement and that Instagram was secondarily liable, meaning liable for another party’s alleged infringement.

Earlier dismissal and amended complaint

The court had previously granted Instagram’s motion to dismiss. It relied on binding Ninth Circuit precedent holding that an alleged infringer displays an image under the Copyright Act only when a copy is embodied—stored—in a computer server, hard disk, or other storage device. The plaintiffs acknowledged that third parties using Instagram’s embedding tool displayed the photos and videos without storing them on their own servers or other storage devices. The court therefore held that the third parties could not be liable for copyright infringement under that precedent, and that Instagram could not be secondarily liable without underlying direct infringement.

The plaintiffs filed an amended complaint instead of appealing. The amended complaint added arguments that the precedent was wrongly decided and alleged that Instagram’s embedding technology directed a viewer’s browser to the Instagram server to retrieve the photo or video’s location. The court concluded that these allegations confirmed, rather than cured, the problem under the governing Ninth Circuit rule.

Ruling

A court generally should allow amendment when justice requires, but it may deny amendment when, among other reasons, amendment would be futile. The court found that the deficiency in the plaintiffs’ first two complaints could not be cured because it was undisputed that the third-party users did not store the photos on their own servers. Because that fact was decisive under the controlling precedent, the court concluded that further amendment would be futile.

Judge Charles R. Breyer granted Instagram’s motion to dismiss without leave to amend. The court again suggested that the plaintiffs present their arguments to the Ninth Circuit.