California federal judge Charles R. Breyer on Friday dismissed the copyright infringement lawsuit of photographers Alexis Huntley and Matthew Scott Brayer who claimed that from July 2013 to June 2020, Instagram misinformed the general public, as well as publications such as BuzzFeed, Time, and Mashable among others, that “by the use of their embedding tool… they did not need to obtain a license or permission from the copyright owner [of the images published in the application] to embed those works.”

It should be noted that US copyright law grants the creator of a creative work, such as a photo, a set of rights, including the exclusive right to display that work, so third parties are generally required to obtain the license or authorization of the copyright holder before making use of said work

Anyway, it is important to remember that said complaint was filed last May in front of a federal court in California, and it was until July that Instagram filed a motion to dismiss the complaint, assuring that because the embedding “is not a direct infringement of copyright“, no one can be responsible for enabling it.

In addition to this, the famous social network, assured that users accept the terms of use that grantInstagram “a non-exclusive license to reproduce and publicly display the content that the user uploads and publishes in his account” he also pointed out that in 2007, the US Court of Appeals for the Ninth Circuit, ruled that accused copyright infringers are not responsible for displaying digital images unless they are actually stored on their own servers, and if they are not those responsible, neither is Instagram.

Which is why a California federal district court accepted the motion, according to Instagram’s arguments about the server test set out in Perfect 10 v. Amazon.com. However, it will give the photographers the opportunity to amend theircomplaint.

“If the publisher of a website does not ‘store’ an image or video in the relevant sense, the publisher of the website does not ‘communicate a copy’ of the image or video and therefore does not violate the right to exclusive display of the copyright owner” Breyer writes in the order, which is included below: “Under Perfect 10, third parties do not violate the exclusive viewing rights of Instagram users, because they do not store the images and the videos, do not ‘fix’ the copyrighted work in any ‘tangible medium of expression’. Therefore, when they embed the images and videos, they do not show ‘copies’ of the copyrighted work.“

Finally, Breyer said that: “In Huntley’s opinion, the Ninth Circuit’s server test misinterprets the Copyright Act. Huntley is free to present that argument to the Ninth Circuit and the Supreme Court. But this Court is not free to artificially restrict or invalidate a binding precedent.“