Alexis Hunley and Matthew Brauer are not fans of Instagram's embedding functionality. And they (and their counsel) are nothing, if not persistent.

Last year, Hunley and Brauer sued Instagram, on behalf of a class of similarly situated Instagram users, alleging that (1) when third parties use Instagram's embedding functionality to display photos and videos on their websites, those third parties are guilty of direct copyright infringement, and (2) Instagram was liable for secondary copyright infringement because it induced and materially contributed to that infringement. (For more about how Instagram's embedding functionality works, see this post and this one.)

In September (see this post), District Judge Charles R. Breyer (N.D. Cal.) dismissed the plaintiffs' original complaint, holding that, under Perfect 10, Inc., v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007), a website publisher does not violate a copyright owner’s exclusive display right in an image unless the image is stored on the publisher's server. (See this post for more background on this so-called "server test.") Under this binding precedent, since website publishers that use Instagram's embedding tool do not store images on any server, but merely use HTML code to link to images already stored on Instagram's severs, the district court concluded that those publishers are not liable for infringement. And if the publishers are not liable for direct infringement, then Instagram cannot be liable on a secondary liability theory. The court ended its opinion by noting that since the plaintiffs clearly were of the view that "the Ninth Circuit's server test misinterprets copyright law," they were "free to present that argument to the Ninth Circuit."

If at first you don't succeed ... file, file again. 

Instead of appealing, the plaintiffs opted to file an amended complaint. In a five-paragraph opinion issued this week, Judge Breyer tossed the amended complaint to the curb, noting the new material added by the plaintiffs consisted mostly of "arguments that Perfect 10 was wrongly decided." Moreover, the court found that the plaintiffs' revised factual allegations "only confirm[ed] that, under Perfect 10, the claims fail as a matter of law" under the server test because the plaintiffs admitted that third party publishers that use Instagram’s embedding technology “direct[] the browser to the Instagram server to retrieve the photo or video’s location on the Instagram server." The court acknowledged that the plaintiffs "may be right that viewers 'do not know or care that the photo or video is located on the Instagram server,' but the problem for [plaintiffs] is that Ninth Circuit law does" (cleaned up). 

It will be interesting to see whether the plaintiffs try their luck with the Ninth Circuit. While I would expect the plaintiffs will have an uphill battle trying to convince a panel to revisit Perfect 10, a lot has changed in the 15 years since that decision was issued. As my colleague Craig Whitney has noted (see this post), a few district courts outside of the Ninth Circuit (mostly in the S.D.N.Y.) have rejected the "server test" and/or questioned whether Perfect 10 should be limited to its facts (and therefore apply only to search engines, like Google). Would this be enough to convince the Ninth Circuit take another look-see at Perfect 10? Will the Supreme Court grant cert to resolve the split? Will other courts faced with photo embedding cases follow the Ninth Circuit or the S.D.N.Y.? How do you catch a cloud and pin it down?

Hunley v. Instagram, 

No. 21-cv-03778-CRB, 2022 WL 298570 (N.D. Cal. Feb. 1, 2022)