Rules for Content: Social Media, Web Embeds, and the Server Test

Lilia Jimenez

 

Introduction:

The social media platform Instagram has been caught in the middle of a recent legal tangle where two Southern District of New York judges split their decisions in two cases related to issues of alleged copyright infringement. In both cases, the defendants had embedded the plaintiffs’ photos (which were posted on and hosted by Instagram’s servers) onto their own websites.[1] The key question remains open: does an Instagram post that resides on Instagram’s servers requires a license at all. To answer this, we should first ask whether the server test should be implemented in social media cases. Under the common-law copyright server test, embedded content which resides on third-party servers does not constitute copyright infringement.[2] This post argues the server test should not be applied to social media cases.

 

The Server Test and It’s Rejection:

The server test is a product of the Amazon v. Perfect 10 decision. In this case, Perfect 10, a subscription-based website for nude photos, made a claim of copyright infringement against multiple plaintiffs that owned search engine websites, most notably, Google Inc.[3] The court found that Google’s in-line links were not infringing, as they did not constitute a “display” as per the copyright act.[4] In-line linking, otherwise known as embedding, is an online coding process that allows for a photo in one server location (a third-party server) to be displayed seamlessly onto a webpage as if it is part of the webpage.[5] Because online content that is embedded, such as a photo, is not saved onto a new server other than the one it currently exists or is stored on, it does not constitute a copy and therefore it not infringement. This is what became known as the server-test.

Judge Forrest, in Goldman v. Breitbart News Network, LLC, recognized that the Perfect 10 opinion, while still standing, is not standing strong, and exposed the “weak legal footing”[6] on which the case stands.[7] In Goldman, the plaintiff’s copyrighted photo of a famous football player was uploaded onto the social media platform, Twitter, and Breitbart News and the defendant, embedded the unauthorized twitter posts of the plaintiff’s photo onto their own website without permission.[8] Judge Forrest firmly grounds her analysis in a user-friendly interpretation of the server test, as intended by the Copyright Act.[9] Reading the Copyright Act plainly, it does not state any requirement that “possessing a copy of an infringing image is a prerequisite to displaying it” and the court, admittedly “skeptical that Perfect 10 correctly interprets display right,”[10] in essence cures the technological loophole in which the server test was able to exist. So, what does that mean for Instagram and other social media platforms? Recent SDNY cases and the function of social media lend a hand to why this distinction must be made in order to uphold the objectives of copyright.

 

2020 SDNY Cases:

In McGucken v. Newsweek, Plaintiff, Elliot McGucken, a landscape photographer, posted a picture of an ephemeral lake in California to his public Instagram account.[11] The next day, the defendant, Newsweek, posted an article about the lake and embedded plaintiff’s Instagram post and photo onto the article webpage quoting McGucken’s observations of the lake and acknowledging him as the photographer, but did not compensate him or ask permission to use his post.[12]  In Sinclair, Plaintiff, Stephanie Sinclair, a professional photographer, made an Instagram post on her public account featuring one of her photos, which is also showcased on her website for potential customers.[13] One week after Sinclair rejected Mashable’s, a website owned by defendant Ziff Davis, offer to pay to use her photo, Mashable published an article about female photographers on its website which featured an embedded copy of the Plaintiff’s photograph.[14] In both cases, the plaintiffs, sued for direct copyright infringement. An in depth understanding of Instagram’s Terms of Use and overall purpose and function are crucial to the outcome of these cases and the future of copyright infringement in the context of social media.

 

Distinguishing Social Media from Search Engines:

The application of the server test within search engines and social media platforms constitutes conflicting policy outcomes due to the inherent function of social media as platforms for creators to share their work. Search engines, like Google, facilitate a flow of information to the public by indexing results of content throughout the web and provides thumbnails which hyperlink to the location of original content. Google is an information platform whose mission is to “organize the world’s information and make it universally accessible and useful.”[15] The application of the server test helps the publicly beneficial technology and dissemination of information itself to function in that it would eliminate a copyright protection to the information that Google passes along, but does not store on their servers.[16] Whereas, social media is designed for creators to share “only photos and videos that you’ve taken or have the right to share”[17] assuring that they own the content they post.[18] By enabling infringers to exploit the works posted to these platforms, the application of the server test to social media in essence counters any platform’s intentions to uphold copyright’s fundamental objectives.

 

Conclusion:

The server test, although supportive of new technology in the search engine context, contravenes both the author’s rights and the public welfare offered by social media technologies. Not only does the server test fail to make logistical sense, in that it perverts the plain language of the copyright statute’s definition of a display, but it’s existence beyond the scope of search engines does not align with the overall purpose and function of social media websites. A balance of policy concerns which underpin the function of copyright law should lead the court away from applying the server test in the context of social media.

 

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[1] See McGucken v. Newsweek LLC, No. 19 Civ. 9617 (KPF), 2020 WL 2836427 (S.D.N.Y. June 1, 2020) and Sinclair v. Ziff Davis, LLC, No. 1:2018cv00790 - Document 41 (S.D.N.Y. 2020). See also Walsh v. Townsquare Media, Inc., 464 F. Supp. 3d 570 (S.D.N.Y. 2020), where plaintiff also claimed copyright infringement but ultimately defendant’s motion to dismiss was granted after finding that their embedding of Plaintiff, Walsh’s, Instagram photo constituted fair use.

[2] See Perfect 10 v. Amazon, 508 F.3d 1146, 1159 (9th Cir. 2007).

[3] Id.

[4] Id. at 1156.

[5] Id. (citing Sinclair v. Ziff Davis, LLC, 454 F.Supp.3d 342 (S.D.N.Y. 2020)).

[6] Jie Lian, Twitters Beware: The Display and Performance Rights, 21 YALE J.L. & TECH. 227 (2019).

[7] See Goldman v. Breitbart News Network, 302 F. Supp. 3d 585, 585 (S.D.N.Y. 2018).

[8] Id.

[9] See Goldman v. Breitbart News Network, 302 F. Supp. 3d 585, 588 (S.D.N.Y. 2018). Judge Forrest notes that the language is written plainly “with the intent to sweep broadly” as opposed to stifling The Act’s ability to expand to other devices and technologies known and unknown by limited the language to technological specificity.”

[10] Id. at 595.

[11] McGucken v. Newsweek LLC, No. 19 Civ. 9617 (KPF), 2020 WL 2836427 (S.D.N.Y. June 1, 2020).

[12] Id.

[13] Sinclair v. Ziff Davis, LLC, 454 F.Supp.3d 342 (S.D.N.Y. 2020).

[14] Id.

[15] Google, About Google – Our Culture Company & News, https://about.google/.

[16] See Perfect 10 v. Amazon, 508 F.3d 1146, 1159 (9th Cir. 2007).

[17] See Instagram, Community guidelines, https://www.facebook.com/help/instagram/477434105621119/?helpref=hc_fnav&bc[0]=Instagram%20Help&bc[1]=Privacy%20and%20Safety%20Center.

[18] Id.