On August 28, 2023, two photographers engaged the legal community by filing a petition for rehearing en banc in the Ninth Circuit, challenging a controversial area of copyright law that directly impacts how content is shared on the internet. Their move was in response to the recent Ninth Circuit decision made in the case of Hunley v. Instagram which had far-reaching impacts on third-party “embedding” of content.
The contentious point relates to Instagram’s shelter from secondary copyright infringement based on third-party “embedding” of Instagram posts. In essence, the case re-emphasized the “server test” that was set in stone during a previous key ruling made in Perfect 10 v. Amazon.
Under the “server test” as upheld by the Ninth Circuit, websites are shielded from secondary liability when they inline link to an infringing image hosted on another server. This basically means that unless the website hosts the unauthorized content on its server, it cannot be held liable for copyright infringement. This rule has played a critical role in preserving key internet functions such as linking, indexing, caching, and embedding.
However, critics of the “server test” argue that this approach emboldens platforms that facilitate widespread copyright invasions by enabling third parties to embed content without obtaining legal permissions. They have cited the unchecked commercial exploitation of copyrighted material without recompenses paid to creators as primary concerns.
In their petition, the photographers urged the Ninth Circuit to reconsider its stance, as the interpretation of the “server test” in its current guise, they argued, effectively promotes unauthorized use of copyrighted material, thereby undermining the rights of creators.
The photographers’ appeal highlights the delicate balance between promoting freedom of use on the world wide web and protecting individual property rights, an issue that, without doubt, merits close attention from everyone in the legal profession.
For more details, read the original case review on the JD Supra website.