No CTRL-ALT-DEL For the Server Test

Alexis Hunley v. Instagram has been referred to as one of the top copyright cases to watch this year. Scott Hervey and Jamie Lincenberg discuss this case on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here.   Show Notes: Scott: It's been referred to as one of the top copyright cases to watch this year. The case Alexis Hunley v. Instagram. It questioned the scope and validity of the server test, a copyright doctrine that was established by the 9th Circuit and has since been rejected by a number of other courts. The 9th Circuit has spoken, and we're going to talk about this case on the next installment of the briefing by Weintraub Tobin. Alexis Hunley versus Instagram involved a potential class action claim against Instagram related to its embedding practice. The plaintiffs were two photojournalists whose photographs were featured on websites of various media outlets without a license. Hunley alleged that Instagram provided an embedding tool which allowed the photos or videos posted on an Instagram account to be simultaneously displayed on third party websites. Hunley alleged that these third parties who displayed her photos via the use of Instagram's embedding tool, committed direct copyright infringement and that Instagram was secondarily liable for infringement. Jamie: Embedding is the process of copying unique HTML code assigned to the location of a digital copy of a photo or video published to the Internet, and the insertion of that code into a target web page or social media post enables that photo or video to be linked for display within the target post. Scott: The lower court tossed the case, holding that the third-party media companies that displayed the photographs Time and BuzzFeed, to name a few, were not liable for direct copyright infringement, and as a result, Instagram was not liable for secondary copyright infringement. The district court concluded that the 9th Circuit's 2007 opinion in Perfect Ten versus Amazon, which established the server test, precluded relief. To Huntley to violate the public display right infringers must display copies of the copyrighted work. The district court held that the embedding websites do not store an image or video and do not communicate a copy of the image or video and thus do not violate the copyright owner's exclusive display. Right under perfect Ten, an alleged infringer displays an image in violation of a copyright holder's rights only if a copy of the image is embodied stored on a computer's server or other storage device. Jamie: The court concluded that because Time and BuzzFeed did not store the image files on their actual servers, they were not liable for direct copyright infringement, and because there was no underlying direct infringement, Instagram could not be secondarily liable. The court invited the plaintiffs to raise their issue with the 9th Circuit if they believed the server test violated copyright law, and the photographers took the court up on its offer. Scott: In June 2022, the photographers filed an appeal with the 9th Circuit arguing for a review of the applicability of the server test. They claimed that the server test was outdated and impractical and argued that it had been widely rejected by virtually every court throughout the country that had considered the same issue. Jamie: In their appeal, the photographers argued that the server test is a technological loophole that did not exist when the Copyright Act was enacted by Congress,