On July 17, 2023, the U.S. Court of Appeals for the Ninth Circuit ruled in favor of Morrison Foerster client Instagram, Inc., holding that embedding social media posts doesn’t constitute an infringing “display” by the site that embeds those posts.
Two photographers sued Instagram, alleging that the company secondarily infringed their exclusive display right by allowing third-party websites to embed copyrighted pictures they posted on their Instagram profiles.
In the precedential ruling penned by U.S. Circuit Judge Jay Bybee, the court reaffirmed the “server test,” which holds that only the party operating the server that hosts an image engages in display of an image, rather than a party who merely provides instructions to a user’s browser directing it to load the image.
Instagram’s position drew amicus support from Google, Pinterest, Twitter, Wikimedia, the Internet Society, the Electronic Frontier Foundation, the Computer & Communications Industry Association, the American Library Association, the Association of Research Libraries, the Association of College & Research Libraries, Authors Alliance, and the Organization for Transformative Works.