Instagram asks court to remove users’ suit on onboarding feature – The Hollywood Reporter


Instagram users unhappy that their images were uploaded to third-party sites can’t sue the app about it, at least that’s what the social media giant is trying to convince a California federal judge.

In May, two photographers sued Instagram on behalf of a proposed user class who, since July 1, 2013, uploaded content to the app that was embedded elsewhere without permission. They claim that the feature violates copyright protections and falsely gives the impression that users can incorporate copyrighted works without worrying, as if they were “eating for free at a buffet. Pictures “.

In a motion to dismiss filed Friday, which is incorporated below, Instagram says photographers cannot sue them for secondary liability because it requires someone else to be responsible for a direct violation of the right to author and that the underlying technology and established case law show that this is not possible here.

Instagram reminds that anyone who creates an account accepts its terms of use, which grant “a non-exclusive license to reproduce and publicly display the content that the user downloads and posts on his account”. It also delves into the technology behind the integration functionality, essentially offering a World Wide Web 101 class: the web is a “global file system”, HTML files are “a recipe” for the website that someone looking for and adding an embed code tells the web page to import items from another server.

The company points to what’s known as the “server test,” which was established by the US 9th Circuit Court of Appeals in 2007 in a lawsuit involving Google and image thumbnails. In this test, Instagram argues that “an internet company can be seen as directly infringing the rights of a copyright owner. only if it hosts and transmits the copyrighted material of its clean waiters.”

Here, it is Instagram that hosts and transmits the content, not the third parties that integrate it.

“Because the embedding is not a direct violation of copyright in law, plaintiffs’ secondary liability claims against Instagram must fail,” attorney Joseph C. Gratz wrote in the petition. “Allowing changes here would be futile because the identity of the server that transmits the copyrighted works to the user is undisputed. Both parties agree that the accused embedded content is transmitted from Instagram’s servers, and not from the third-party publisher’s servers, to the user’s browser. … Thus, there is no set of facts that the Complainants could allege – without contradicting each other – that would alter the applicability of the Ninth Circuit Server Test.

A hearing is currently set for August 20.

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