No CTRL-ALT-DEL For the Server Test

Alexis Hunley v. Instagram has been referred to as one of the top copyright cases to watch this year. Scott Hervey and Jamie Lincenberg discuss this case on this episode of The Briefing.

Watch this episode on the Weintraub YouTube channel here.

 

Show Notes:

Scott:
It’s been referred to as one of the top copyright cases to watch this year. The case Alexis Hunley v. Instagram. It questioned the scope and validity of the server test, a copyright doctrine that was established by the 9th Circuit and has since been rejected by a number of other courts. The 9th Circuit has spoken, and we’re going to talk about this case on the next installment of the briefing by Weintraub Tobin. Alexis Hunley versus Instagram involved a potential class action claim against Instagram related to its embedding practice. The plaintiffs were two photojournalists whose photographs were featured on websites of various media outlets without a license. Hunley alleged that Instagram provided an embedding tool which allowed the photos or videos posted on an Instagram account to be simultaneously displayed on third party websites. Hunley alleged that these third parties who displayed her photos via the use of Instagram’s embedding tool, committed direct copyright infringement and that Instagram was secondarily liable for infringement.

Jamie:
Embedding is the process of copying unique HTML code assigned to the location of a digital copy of a photo or video published to the Internet, and the insertion of that code into a target web page or social media post enables that photo or video to be linked for display within the target post.

Scott:
The lower court tossed the case, holding that the third-party media companies that displayed the photographs Time and BuzzFeed, to name a few, were not liable for direct copyright infringement, and as a result, Instagram was not liable for secondary copyright infringement. The district court concluded that the 9th Circuit’s 2007 opinion in Perfect Ten versus Amazon, which established the server test, precluded relief. To Huntley to violate the public display right infringers must display copies of the copyrighted work. The district court held that the embedding websites do not store an image or video and do not communicate a copy of the image or video and thus do not violate the copyright owner’s exclusive display. Right under perfect Ten, an alleged infringer displays an image in violation of a copyright holder’s rights only if a copy of the image is embodied stored on a computer’s server or other storage device.

Jamie:
The court concluded that because Time and BuzzFeed did not store the image files on their actual servers, they were not liable for direct copyright infringement, and because there was no underlying direct infringement, Instagram could not be secondarily liable. The court invited the plaintiffs to raise their issue with the 9th Circuit if they believed the server test violated copyright law, and the photographers took the court up on its offer.

Scott:
In June 2022, the photographers filed an appeal with the 9th Circuit arguing for a review of the applicability of the server test. They claimed that the server test was outdated and impractical and argued that it had been widely rejected by virtually every court throughout the country that had considered the same issue.

Jamie:
In their appeal, the photographers argued that the server test is a technological loophole that did not exist when the Copyright Act was enacted by Congress, which has no support or explanation in the plain language of the Copyright Act and for which no public policy justification exists.

Scott:
The photographers also argued that the District Court went well beyond the scope of applicability of Perfect Ten. Perfect Ten applied to the use of embedded images in a search engine, not third-party website publishers. The plaintiffs contended that no court has expanded the server test to apply to embedding technology from Instagram or other social media platforms to third party website publishers.

Jamie:
The photographer’s appeal didn’t quite go as hoped. The 9th Circuit rejected their arguments that Instagram’s embedding tool violated their right of public display and also rejected all of their arguments for getting rid of or limiting the scope of the server test.

Scott:
That’s right. The Court rejected Hunley’s argument that the server test should only apply to search engines and should not extend to content embedded into commercial websites from social media platforms. The Court said that its holding in Perfect Ten did not rely on the unique technology of a search engine, but rather the plain language of the Copyright Act.

Jamie:
And the Court also rejected Hunley’s argument that the server test is inconsistent with the Copyright Act. Rather than address the specific challenges raised by Hunley, the Court simply said that it will not consider these arguments in any detail because they are foreclosed by Perfect Ten. This is due to the fact that the 9th Circuit can’t overrule its own holding in Perfect Ten outside of Bank proceeding unless there has been a statutory change or an intervening Supreme Court decision.

Scott:
The court also rejected Hunley’s argument that Perfect Ten has essentially been overruled by the Supreme Court’s decision in ABC versus Arrow. The Court noted that Arrow involved a different right the right of public performance and not the public display right. And the difference between these rights mandates a different form of analysis.

Jamie:
At the beginning of the Court’s opinion, a fair amount of time was spent discussing the technical aspects of embedding.

Scott:
Yeah, that’s true. It seems that the Court did this so that the readers of the opinion could understand the Court’s discussion of how the right of public display is infringed. The Court also drew an analogy of embedding to hypertext linking. Both are lines of code which cause a user’s browser to display an image at the target location. And generally, courts have found that hypertext linking is not direct infringement. Also, I think the Court was trying to point out that the host server retained full and complete control over the embedded image, that the host server can change the image. It can prevent the display of the image altogether by disabling the embedding functionality. And I think that control element was and is and remains an important element in the server test.

Jamie:
So, Scott, is this the end of the line for Hunley and the final challenge to the server test.

Scott:
It’s probably not the end of the line for Hunley, and it certainly is not the last challenge to the server test. The server test is the law of the land in the 9th Circuit, but it’s been rejected by judges in the Southern District of New York. So, there is bound to be a discussion in those states that have not officially weighed in yet. And maybe we’ll have a circuit split that may require the Supreme Court to weigh in. As for Hunley, the Court said that it can’t overrule perfect ten outside of an in-bonk review from the entire 9th Circuit Court or an intervening decision from the Supreme Court. So, it’s a fair bet that Hunley will go one of those two routes.

Jamie:
That’s really interesting, Scott. Thank you for sharing that with us. We will keep up with what happens with Hunley if there is an appeal.

Scott:
Yeah, we will definitely do that. Jamie, thanks for joining us today.

Jamie:
Thanks for having me.

Scott:
Well, that wraps it up for this installment of The Briefing by Weintraub Tobin. We hope you enjoyed this episode. Please remember to subscribe to our webcast and to our podcast asked and if you’re interested in more content, well, we have lots of episodes for you to.