McGucken v. Newsweek LLC

Background

The court’s June 1, 2020 opinion had granted in part and denied in part Newsweek’s motion to dismiss McGucken’s amended complaint. In that earlier ruling, the court concluded that Instagram’s Terms of Use clearly gave Instagram a license to sublicense publicly posted content, but that the materials presented at the motion-to-dismiss stage did not clearly establish a sublicense between Instagram and Newsweek.

Newsweek then moved for partial reconsideration under Federal Rule of Civil Procedure 59(e), Rule 60(b), and Local Civil Rule 6.3. It argued that the court had failed to take judicial notice of Instagram’s Embedding page and that the page showed a sublicense. In the alternative, Newsweek argued that it had not received a full opportunity to brief the sublicensing issue.

Reconsideration standard

The court explained that Rule 60(b) applies only to final orders and judgments, and that the earlier denial of Newsweek’s motion to dismiss was not a final order or judgment. The court therefore evaluated the request under Rule 59(e) and Local Rule 6.3. Under those rules, reconsideration requires the moving party to identify controlling decisions or information the court overlooked that could reasonably change its conclusion. The court described reconsideration as a strict remedy that cannot be used to present new arguments or reargue issues already decided.

Instagram’s Embedding page

The court rejected Newsweek’s argument that it had overlooked the Embedding page. It said the page was not a policy or agreement but a set of instructions explaining how to embed Instagram content, including instructions for WordPress and developers. Unlike Instagram’s Privacy Policy and Platform Policy, the Embedding page was not incorporated by reference into Instagram’s Terms of Use or other policies.

The court also rejected Newsweek’s argument that users agreed to Instagram’s Platform Policy in exchange for the right to embed content. The Embedding page did not ask users to agree to anything. Although a dialogue shown on the page stated that using an embed meant agreeing to Instagram’s application programming interface terms, that language did not establish that Instagram had granted users a sublicense to use other people’s content.

The court further held that the statement that users could embed content from public profiles explained what embedding technically allowed users to do; it did not itself grant a sublicense. Even if the page were treated as an agreement, the court concluded that its language was insufficient to establish an express or implied sublicense at the motion-to-dismiss stage.

Opportunity to brief the issue

The court acknowledged that Newsweek’s briefing had been affected somewhat by McGucken’s supplemental brief. But it found that Newsweek had addressed its licensing theory in its opening brief, reply brief, and two briefs supporting reconsideration. The court therefore declined to allow additional briefing and said further briefing would not change its prior conclusion.

Counsel warning and disposition

The court warned McGucken’s counsel about what it viewed as inflammatory conduct, including attaching an article that the court said served only to cast aspersions on Newsweek’s business and accusing Newsweek’s counsel of ethical violations. The court said Newsweek’s counsel had not been required to bring the cited matters to the court’s attention and that seeking sanctions on those grounds would be ill-advised.

The court denied Newsweek’s motion for reconsideration. It directed the clerk to terminate the motion, ordered Newsweek to file a responsive pleading by November 9, 2020, and directed the parties to submit a proposed case-management plan and related joint letter by November 16, 2020. The court stated that the action would proceed to discovery.