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ARTICLE · 21 SEPTEMBER 2021

Instagram Prevails With "Server Test" Defense In Photo Embedding Case

Frankfurt Kurnit Klein & Selz PC
Frankfurt Kurnit Klein & Selz PC
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Frankfurt Kurnit Klein & Selz PC

Frankfurt Kurnit Klein & Selz PC

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Yet another photo embedding case, but this time Instagram wins based on the court's application of the "server test."

United StatesMedia, Telecoms, IT, Entertainment

Yet another photo embedding case, but this time Instagram wins based on the court's application of the "server test." 

The plaintiffs own the copyright in photos that they voluntarily posted on Instagram. They sued Instagram in the Northern District of California, alleging that Instagram is secondarily liable for copyright infringement that occurs when third parties use Instagram's embedding tool to display their photos on websites off the Instagram platform.

The plaintiffs didn't sue Instagram for direct copyright infringement, presumably because they realized that the license that they (like all Instagram users) granted to Instagram, via Instagram's Terms of Service ("TOS"), would doom any attempt. While the scope of that license may not be free from doubt in certain respects - including as to whether it is broad enough to permit Instagram to sublicense rights to third parties employing the embedding tool (see this post) - it would be mighty hard to

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This post first appeared in Frankfurt Kurnit's Focus on the Data blog (www.focusonthedata.com). It provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

Originally published by the New York Legal Ethics Reporter

www.fkks.com

This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

www.fkks.com

This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

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