HUNLEY v. INSTAGRAM LLC (2023)

OPINION

This copyright dispute tests the limits of our holding in Perfect 10 v. Amazon, 508 F.3d 1146 (9th Cir. 2007) in light of the Supreme Court's subsequent decision in American Broadcasting Companies, Inc. v. Aereo, 573 U.S. 431, 134 S.Ct. 2498, 189 L.Ed.2d 476 (2014). Plaintiffs-appellees Alexis Hunley and Matthew Scott Brauer (collectively “Hunley”) are photographers who sued defendant Instagram for copyright infringement. Hunley alleges that Instagram violates their exclusive display right by permitting third-party sites to embed the photographers' Instagram content. See 17 U.S.C. § 106(5). The district court held that Instagram could not be liable for secondary infringement because embedding a photo does not “display a copy” of the underlying images under Perfect 10.

We agree with the district court that Perfect 10 forecloses relief in this case. Accordingly, we affirm.

I. FACTS AND PROCEEDINGS

A. Facts

1. The Background

Instagram is a social media platform where users share photo and video content to their followers. Users with public profiles grant Instagram a royalty-free sublicense to display their photos. Instagram's infrastructure also allows third-party websites to “embed” public Instagram posts.

Embedding 1 is a method that allows a third-party website (the embedding website) to incorporate content directly from the website where it originally appeared (the host website). Websites are created using instructions written in Hypertext Markup Language (“HTML”). Perfect 10, 508 F.3d at 1155. HTML is a text-only code, meaning that the underlying HTML instructions cannot contain images. Instead, when a website wants to include an image, “the HTML instructions on the web[site] provide an address for where the images are stored, whether in the web[site] publisher's computer or some other computer.” Id.

Users access a website through a web browser application. Id. When a web creator wants to include an image on a website, the web creator will write HTML instructions that direct the user's web browser to retrieve the image from a specific location on a server and display it according to the website's formatting requirements. When the image is located on the same server as the website, the HTML will include the file name of that image. So for example, if the National Parks Service wants to display a photo of Joshua Tree National Park located on its own server, it will write HTML instructions directing the browser to display the image file, , and the browser will retrieve and display the photo, hosted by the NPS server. By contrast, if an external website wants to include an image that is not located on its own servers, it will use HTML instructions to “embed” the image from another website's server. To do so, the embedding website creator will use HTML instructions directing the browser to retrieve and display an image from an outside website rather than an image file. So if the embedding website wants to show the National Park Service's Instagram post featuring Joshua Tree National Park—content that is not on the embedding website's same server—it will direct the browser to retrieve and display content from the Instagram's server. The HTML instructions that direct a browser to embed an external social media post look something like this:

1.   We have sometimes referred to embedding as “in-line linking” or “framing.”

2.   Websites that embed Instagram's content are bound by Instagram's Platform Policy, and Instagram does not grant third parties a license to users' works. Rather, Instagram maintains that third-party sites have the responsibility to seek permission from the copyright holder as “required by law.” According to Hunley, no third party obtained permission from Instagram to embed copyrighted content.

3.   Hunley alleged that Instagram made embedding available to create a revenue stream for its photo-sharing platform, and that Instagram “reaps billions of dollars annually” from encouraging third parties to embed Instagram content.

BYBEE, Circuit Judge: