Hunley v. Instagram, LLC

Hunley v. Instagram, LLC

Opinion

ORDER GRANTING MOTION TO DISMISS

A copyright owner "has the exclusive right" to "display" a copyrighted image or video "publicly." 17 U.S.C. § 106(5). To "display" a copyrighted image or video means "to show a copy of it, either directly or by means of . . . any other device or process." Id. § 101. "Copies" are "material objects . . . in which a work is fixed by any method . . . and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." Id. And a work is "fixed [*2]  in a tangible medium of expression when its embodiment in a copy . . ., by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." Id.

The Ninth Circuit has applied these statutory definitions of the terms "display," "copy," and "fixed" to determine when a website that shows a copyrighted image has violated a copyright owner's exclusive display right. See Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1160 (9th Cir. 2007). Under Perfect 10, an "image is a work that is 'fixed' in a tangible medium of expression, for purposes of the Copyright Act, when embodied (i.e., stored) in a computer's server (or hard disk, or other storage device)." Id. (internal quotation marks omitted). If a website publisher does not "store" an image or video in the relevant sense, the website publisher does not "communicate a copy" of the image or video and thus does not violate the copyright owner's exclusive display right. Id. at 1160-61. This rule is known as the "server test." See Mot. to Dismiss (dkt. 16) at 1; Opp. (dkt. 25) at 7.

Here, Plaintiffs Alexis Hunley and Matthew Brauer (collectively, Hunley) are suing Defendant Instagram, LLC for copyright [*3]  infringement. See Compl. (dkt. 1) at 19-22. Instagram is a social media platform that enables users like Hunley to share photographs and videos. Id. ¶ 1. Hunley does not assert that Instagram violates Hunley's exclusive display right by showing photographs that Hunley shares. Id. ¶ 2-3. Instead, Hunley asserts that an Instagram feature (an "embedding tool") enables third-party websites to display copyrighted photos or videos posted to an Instagram account. Id. And according to Hunley, offering this tool makes Instagram secondarily liable for those third parties' copyright infringement. Id. 19-22. Instagram has moved to dismiss Hunley's complaint. See Mot. to Dismiss.

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