Authors Alliance is pleased to announce that we have joined with several civil society and library organizations (EFF, CCIA, ALA, ARL, OTW and ACRL) on an amicus brief submitted to the Ninth Circuit Court of Appeals in Hunley v. Instagram, a case about whether individuals and organizations that merely link to content can be liable for secondary copyright infringement, a judicial doctrine which places liability on a party that knowingly contributes to or facilitates copyright infringement, but does not itself directly infringe a copyright. More specifically, the case asks whether Instagram can be secondarily liable for copyright infringement when users use its “embedding” feature, whereby websites and platforms can employ code to display an Instagram post within their own content. 

The Case

The case arose when a group of photographers, who had captured images related to the death of George Floyd and the 2016 election, became upset that their images were being used in a variety of media outlets without permission. The outlets had used Instagram’s embedding tool to link and post the images rather than copying the images directly. The photographers then sued Instagram in the Northern District of California, on the theory that by offering the “embedding” feature, it was facilitating copyright infringement of others and therefore liable.

The district court dismissed the photographers’ claim because it did not pass muster under an inquiry known as the “server test,” established in the seminal Ninth Circuit case, Perfect 10 v. Amazon. The server test is premised on the idea that a website or platform does not violate the copyright holder’s exclusive right to display their work when a copy of the work is not stored on that website or platform’s servers. In short, the inquiry asks whether the work was stored on a website’s server, in which case the website could be liable for infringement, or whether that website merely links elsewhere without storing a copy of the work, in which case it cannot. When media outlets in this case embedded Instagram posts into their content, they did so using code that embeds and displays the post, but the posts were not actually stored on the outlets’ servers. Therefore, the district court found that Instagram was not liable for secondary infringement under the server test.  

The photographers have appealed to the Ninth Circuit Court of Appeals to challenge the validity of the server test for embedded content. It is worth noting that district courts in other circuits have disapproved of the Ninth Circuit’s Perfect 10 server test and found that embedding can constitute secondary infringement in some cases, and it is not applied in all jurisdictions. For this reason, some have speculated that the Ninth Circuit’s server test is ripe for revisiting. 

The Brief

Our amicus brief asks the Ninth Circuit to affirm the district court’s dismissal of the photographers’ complaint and the continued viability of the server test. It argues that the Perfect 10 server test should not be discarded, as it has paved the way for an internet that depends on the use of hyperlinks to connect information and present it efficiently. The brief explains how linking works, why linking is important, and the negative consequences for a wide variety of internet users—including authors—that could occur if the court narrows or rejects the server test. 

First, our brief explains how embedding and linking work: when an article or website links to other content, it accomplishes this by using computer code to incorporate another’s content into the work and/or direct users to it. Our brief argues that linking, and particularly the act of inline linking (providing links within the text of a website or blog post itself, as we have done throughout this post) is fundamental to the internet as we know it. Online advertising, message boards, and social media platforms depend on the ability to connect sources of information and direct users elsewhere online. 

Second, our brief argues that abandoning or narrowing the Perfect 10 server test could introduce liability for inline linking. Like embedding social media posts, inline linking to other content incorporates materials created by others indirectly without the secondary user actually hosting that content on a server. In this way, inline linking allows internet users to efficiently verify information or learn more about a given topic in just a click. Inline linking is in this way analogous to embedding, meaning that a decision in favor of secondary liability in this case could threaten the legality of inline linking, potentially disrupting the very fabric of the internet as we know it.

Like the general internet-using public, authors also depend on their ability to link to other sources in their online writings to cite to other sources and engage with other works of authorship. In fact, this is why we decided to weigh in on this case: a decision that introduces liability for inline linking could drastically alter how authors can cite to other sources of information and how they can conduct research in a digital environment. Authors rely on inline linking to save space and preserve the readability of their works while citing sources and engaging with other works. Authors also depend on online linking to perform research, as it can quickly and easily direct them to new sources of information. As more and more works are born digital, an author’s ability to link to other content to enrich their scholarship has become more important than ever. It is crucial that this ability is protected in order for the internet to continue to be an engine of learning and the advancement of knowledge. 

So far, the parties have submitted their opening briefs in this case, and several other amicus briefs have been filed. Oral argument has not yet been scheduled. Authors Alliance will keep our readers informed about updates in this case as it moves forward. 

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