25 November 2021CopyrightMuireann Bolger

Instagram hits back at photographers’ amended copyright suit

Instagram has filed a motion to dismiss an amended infringement complaint filed by a pair of photographers centring on posts that appeared on sites including Buzzfeed and Time.

The social media platform argued the revised complaint presents improper legal arguments, according to its motion filed on November 19 at the US District Court for the Northern District of California.

The dispute arose in May, when Alexis Hunley and Matthew Scott Brauer sued Instagram, alleging copyright infringement over Instagram posts that were embedded on third-party websites.

But in September, the federal court in California dismissed these claims, finding that they failed the Ninth Circuit’s “server test” that narrows copyright infringement to instances where a party stores copyrighted work on a server.

Consequently, in its order granting Instagram’s motion to dismiss the original complaint, the court held that the platform could not be liable for infringement because it was undisputed that the third-party websites like Buzzfeed and Time did not store the embedded images and videos on their own servers.

The court ruled that: “Buzzfeed and Time did not ‘fix’ the copyrighted work in any ‘tangible medium of expression,’ and did not display ‘copies of the copyrighted work’ under the Copyright Act,” which meant that Instagram could not be held liable for secondary infringement.

According to the Meta-owned platform, the amended complaint lodged last week by Hunley and Brauer does not contain any new factual allegations to change this earlier finding by the court.

“Instead, Plaintiffs’ new allegations consist of a slew of improper legal arguments contrary to Ninth Circuit law, and new characterisations of the exact same technical embedding process alleged in the dismissed complaint,” stated Instagram.

The social media company further insisted that if the photographers wanted to challenge the wisdom of the “server test”, they should raise it with the Ninth Circuit.

“But plaintiffs should not be permitted to waste the court’s limited resources by filing serial amended complaints that are subject to dismissal for the exact same reasons,” it said.

The plaintiffs’ response is due by Friday, December 3.

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