In an Era of Social Media and Cloud Computing, It’s Time for the Server Test to Retire
In an Era of Social Media and Cloud Computing, It’s Time for the Server Test to Retire
Kara West I
Introduction
In 2021, two photographers—Alexis Hunley and Matthew Brauer—sued the social media giant Instagram for copyright infringement.[2] Hunley and Brauer, like many other artists throughout the world, displayed their work on their Instagram accounts.[3] Online publishers then used Instagram’s embedding tool to display the photos from Hunley’s and Brauer’s profiles on their webpages without the artists’ permission.[4] To the casual internet user, a photo or video that has been embedded on a webpage could look as if it were simply copied from the source material and pasted on the page. Unlike a simple copy-paste job, however, some federal court jurisdictions don’t consider embedding to be copyright infringement.[5] Companies and users are free to use photos without permission, and artists who rely on social media to market themselves are left vulnerable to having their work essentially stolen from them.
Hunley was brought in the Ninth Circuit which had previously decided, in a case called Perfect 10 v. Amazon, that embedding does not constitute copyright infringement.[6] Using what is now termed the “server test,” the Ninth Circuit held that a party who embeds an image belonging to another as a thumbnail in its search page is not liable for copyright infringement.[7] The district court judge in Hunley dismissed the case under the precedent of Perfect 10.[8]
This Note argues that the Ninth Circuit’s server test is outdated and should be discarded in favor of an interpretation of the display right that focuses on the audience’s perspective rather than whether a potential infringer possesses a copy of the work. Part I briefly explains the necessary history of copyright and gives statutory definitions of the relevant sections of the Copyright Act; Part II introduces the server test and alternative interpretations of the display right used by the Second Circuit that can better address the right in the modern age; Part III shows the inapplicability of the server test in the digital era and discusses an alternative in contract.
I. A Brief History and Background
Centuries before the birth of the Internet, English law recognized the importance of establishing a property right in intellectual works.[9] The invention of the printing press in the mid-1400’s made it easier and cheaper than ever to create copies of books.[10] In 1710, The British Parliament enacted the first formal copyright statute, the Statute of Anne.[11] Although the Statute was broadly worded and, in many cases, practically ineffective, it is the common origin of the two fundamental principles of American copyright law: the right of an author to his or her writing and the encouragement of societal learning.[12]
The Framers purposefully incorporated the principles into the Constitution via the Intellectual Property Clause, which allotted to Congress the power “[t]o promote the [p]rogress of [s]cience and useful [a]rts, by securing for limited [t]imes to [a]uthors and [i]nventors the exclusive [r]ight to their respective [w]ritings and [d]iscoveries.”[13] The first copyright act passed by Congress in 1790 “was essentially a copy of the Statute of Anne.”[14] Under the 1790 Copyright Act, the only items that could be copyrighted were maps, charts, and books.[15] The list of copyrightable subject matter grew over time in response to advancements in technology.[16] In 1865, Congress amended the Copyright Act to include photographic prints and negatives.[17] Congress compared the image taken by the photographer to writings by an author.[18] The latest iteration of the Act lists eight broad categories of copyrightable subject matter.[19] The list is not exhaustive because the legislative drafters of the 1976 Act intentionally allowed room for new technology to be included in the eight stated categories.[20]
A. Some Copyright Terminology
The 1976 Copyright Act uses the term “copies” somewhat counterintuitively.[21] Imagine an artist draws an adorable furry raccoon on a sheet of paper. She places the drawing in a copier. The copier scans the drawing and then spits out an exact replica of the raccoon on another sheet of paper. Section 101 of the Act states that “copies” are “material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”[22] Both the original drawing and the copy are material objects; both are embodied on sheets of paper; both can be framed and hung on a wall, captured by photograph, and run through the copier over and over again. Both raccoons are “copies” under the Act.
A work can only be “protected by copyright” if it is “recorded in some physical[,]” tangible form—like the drawing on paper in the example above.[23] This is known as the fixation requirement.[24] Throughout the twentieth century, works have fulfilled the fixation requirement by being recorded in the forms of “books, maps, and charts [as well as] dramatic works like plays, musical compositions, visual art, [and] photographs.”[25] In the digital world, works typically fulfill the requirement by being stored on some physical device such as a hard drive or SD card.[26]
Although a work must be “fixed” in a tangible form—like a copy—to be protected by copyright, a work is nonetheless its own distinct entity.[27] Multiple copies of the same work can exist at once, and often those copies are in different forms.[28] For example, you can buy J.R.R. Tolkien’s The Hobbit in either the form of an eBook or a classic hardcover on Amazon.
B. The Display Right
The term “copyright” applies to a bundle of several rights which often overlap with one another.[29] Copyright includes the right to reproduce, to prepare derivatives, to distribute, to perform, and to display.[30] The copyright holder’s “display” right is at the center of the server test.[31] The plaintiffs in Hunley alleged that the third-party publishers infringed their copyright by displaying their photos when they used Instagram’s embedding tool.[32] When the Copyright Act of 1976 was constructed, Congress gave a few examples of what constitutes a “display”: projecting an image, transmitting the image “by electronic or other means,” and even “showing [it] on … [a] viewing apparatus connected with any sort of information storage and retrieval system.”[33] Computer displays or iPhone screens could easily fit into these examples, especially when one considers Congress’ admission that it couldn’t include every conceivable piece of future technology in 1976.[34]
II. Introducing the Server Test
The server test was reviewed in the Ninth Circuit case Perfect 10 v. Amazon.com.[35] Perfect 10 operated a subscription website.[36] Perfect 10’s subscribers used a password to log into a “members’ area” where they could access images of nude models that Perfect 10 had copyrighted.[37] On occasion, website publishers would “republish Perfect 10’s images on the Internet without [prior] authorization.”[38] Google’s search engine then automatically indexed the webpages that containined the images and it provided thumbnail versions of the images “in response to user inquiries.”[39] When a user clicked a thumbnail, he or she would be taken to a webpage showing the full-size version.[40] Perfect 10 claimed that Google directly infringed its copyrights by displaying Perfect 10’s photos in its image search.[41] After applying the server test, the Ninth Circuit court ruled that Google did not committed copyright infringement because Google never stored the images in its servers.[42]
The Ninth Circuit’s server test states that an alleged infringer displays an image in violation of a copyright holder's rights only if a copy of the image is stored in the infringer’s computer server, hard disk, or “other storage device.”[43] Under the Copyright Act of 1976, “[t]o ‘display’ a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process . . . .”[44] To be “shown,” under the Copyright Act, a copy must first be “fixed.”[45] Fixation occurs when a copy is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”[46]
This reasoning suggests that in order to “display” a copy, one must be in possession of the copy in the first place. Google never displayed a copy because it never had possession of a copy; it never had possession of a copy because it never stored (i.e., “fixed”) a copy in its servers.[47] Instead, when a user clicks on a thumbnail in Google’s image search, HTML instructions direct the user to the image on a third party’s website.[48] The third party is in possession of the copy, not the search browser.[49]
A. Framing v. Embedding
Perfect 10 addresses both framing and embedding, but both types of activity violate the display right, and courts typically treat them the same.[50] However, for the sake of clarity, it is important to highlight the difference between the two. “Framing” in the digital world is similar to literally placing a frame around an original artwork. One party displays another party’s webpage within the “frame” of its website.[51] The content from the source’s webpage appears exactly the same on the framer’s website as it does on the source’s site, “including any explanatory text, advertisements, or attribution information.”[52] The only difference between the two is the web address.
Embedding (also known as in-line linking) occurs when “code on one page . . . links to content (often images or videos) hosted elsewhere.”[53] Think of embedded links like directions on a map: they show a user’s computer “how and where to access content” elsewhere on the Internet.[54] However, embedding is different from framing in that instead of showing a source webpage as it appears on the source’s website, it places specific content from the source into the new context of another website.[55] “[A]ny text or advertisements which may have accompanied the content on the source[’s]” webpage are replaced by the text and advertisements on the new website.[56]
B. The Server Test and Embedding
Although the server test closely aligns with the language in the Copyright Act, it leads to impractical real-world results. Perfect 10 was decided in 2007, three years before the creation of Instagram and almost 15 years before Hunley.[57] The Seventh Circuit used a similar construction of the server test in 2012 in Flava Works v. Gunter, where it demonstrated the flawed operation of the test’s logic.[58]
Flava Works concerned a “social bookmarking” website called myVidster, which operated somewhat like YouTube.[59] MyVidster users could “bookmark” videos they found on the Internet on its site so other users could watch them later.[60] “Upon receiving the bookmark[,] myVidster automatically requested the video’s ‘embed code’ from the server that [stored] the video.”[61] “[E]mbed codes contain[ed] the video’s web address [along with] instructions [on] how to display the video.”[62] Once myVidster received the code from the server, it created its own webpage with the video, making it appear to the user as though the video from the third-party website was located “on myVidster’s website.”[63]
The Seventh Circuit held that since the users who bookmarked videos on myVidster’s website never actually copied the videos, they had not infringed Flava Works’ copyrights;[64] and MyVidster could not have contributorily infringed because it only used embedded links and never stored any copy on any of its servers.[65] A social bookmarking service like myVidster should not be made “a policeman of copyright law[,]” the court stated, because it could never “know whether a video that a visitor bookmarks on . . . [its] website is protected by copyright”.[66]
The financial motivation for the use of copyrighted work on social media websites is far stronger now than in 2012. For example, Facebook acquired Instagram in 2012, the same year Flava Works was decided.[67] In 2012, the social media company brought in no revenue at all.[68] However, in 2021, less than ten years later, Instagram made an estimated $47.6 billion in revenue.[69] Also in 2021, advertising across all the major social media platforms grew to an estimated $57.7 billion.[70] Users generate income from the advertisements social media platforms place on their posts, creating a fierce drive to produce (and infringe on) engaging content.[71]
C. American Broadcasting Companies, Inc. v. Aereo, Inc.
In 2014, the Supreme Court decided American Broadcasting Companies, Inc. v. Aereo, Inc.[72] Aereo concerned the performance right, which makes up part of the bundle of rights that is copyright.[73] The Court’s opinion in Aereo is the closest the Court has come to discussing the issues surrounding the server test.[74]
Aereo offered a subscription service that allowed its subscribers to view broadcast television live over the Internet.[75] Once a subscriber chose a show to watch on Aereo’s website, Aereo used its own antennas to capture the broadcast and its own transcoders “translate the signals received into data.”[76] It saved the data “in a subscriber-specific folder on [its] hard drive.”[77] Once a few seconds of the show had “been saved, Aereo’s server [then] stream[ed]” it “to the subscriber over the Internet.”[78]
In Fortnightly Corp. v. United Artists Television, Inc., a predecessor case to Aereo, the Court held that a service which only enhances its customers’ ability to access copyrighted material does not perform the copyrighted material in violation of the Act.[79] Instead, the service works like a stage play, the broadcaster taking on the role of an actor and the viewer taking on the role of a member of the audience.[80] However, as the Court implicitly acknowledged, this performer/viewer dichotomy fails when technology is added to the mix.[81] A broadcaster does less than an actor who creates an image of a character in front of an audience; it simply provides electronic signals.[82] And a viewer of a broadcast takes a more active role than a viewer of a stage play; he or she provides the equipment necessary to convert the broadcaster’s electronic signals into images.[83]“Broadcasters perform[ed].” Since the service simply “enhance[d] the viewer’s capacity to receive the broadcaster’s signals,” it fit the role of viewer more so than performer.[84]
Fortnightly was decided in 1968.[85] Eight years later, Congress amended the Copyright Act once again, this time with an intention to overturn the Supreme Court’s narrow construction of the performance right in Fortnightly.[86] Congress added language to clarify and broaden the scope of the right.[87] The newest version of the Act states technology that occupies the role of either broadcaster or viewer has the capacity to “perform[]’ a work”, meaning it can “show its images in any sequence or . . . make the sounds accompanying it audible.”[88]
The Aereo Court applied the amended Copyright Act’s definition of “perform” to Aereo and therefore determined that Aereo infringed on the plaintiffs’ public performance right.[89] Aereo’s activities were “substantially similar to those of the . . . companies . . . Congress” targeted when it amended the Act in 1976.[90] Under the amended Copyright Act, the companies in Fortnightly “performed” a broadcast whenever their equipment transmitted the electronic signals that made up the broadcast to their customers.[91] Similarly, Aereo “performed” whenever one of its servers streamed a program to a subscriber.[92]
D. The Influence of Aereo in the Southern District of New York
The Southern District of New York has explicitly rejected the server test twice in the past several years, in both instances using the Court’s holding in Aereo to support its interpretation of the display right in the Copyright Act.[93] The focus of the performance right analysis is on the effect a new piece of technology has on a viewer, not its physical structure.[94]Since the performance right and the display right are both part of the bundle of rights which comprise copyright, they should be analyzed similarly.[95]
Goldman v. Breitbart concerned a plaintiff who, similar to the plaintiffs in Hunley, owned the copyright to a photo he had taken and posted to social media. The plaintiff’s photo of football star Tom Brady had gone viral online.[96] The plaintiff alleged that, by Breitbart and other news outlets embedding Tweets that contained his photo in their articles, they infringed on his display right.[97]
The Southern District of New York pointed out that a key component of the Supreme Court’s opinion in Aereo was that “technical distinctions [that are] invisible to the user should not be the lynchpin on which copyright liability lies….”[98] So the fact that the defendants never stored a copy in their servers is irrelevant.[99] Their websites “displayed” the plaintiff’s Tom Brady photo simply by “putting a process in place[, embedding, ]that resulted in a transmission of the photo[] so [it] could be visibly shown.”[100]
In 2021—three years after Breitbart—the Southern District of New York decided Nicklen v. Sinclair Broadcast Group, Inc.[101] The plaintiff in Sinclair was a nature photographer who had posted a video of a polar bear to his Instagram and Facebook.[102] The video’s caption expressly directed those who wished to use the video to contact the plaintiff’s organization.[103] Sinclair Broadcast Group, a Maryland-based media conglomerate, used an embedding tool to add the video to one of its articles.[104] A casual reader, even one without a Facebook or Instagram, could view the video in the article without ever having to navigate to the plaintiff’s social media accounts.[105]
The Southern District of New York described the display right as being “technology neutral.”[106] It is “concerned not with how a work is shown, but that a work is shown.”[107] So despite all the technical jargon surrounding embedding, the embed code is nonetheless “simply an information ‘retrieval system’” that allows an image or video to be seen.[108] Sinclair therefore “displayed” the plaintiff’s video within the meaning of the Copyright Act when it embedded the video in its article.[109]
E. Other Courts’ Approaches to the Display Right
In Leader’s Institute v. Jackson, the Northern District of Texas considered the display right in relation to framing.[110] The plaintiffs in Jackson had “framed” the defendants’ webpage by including code in their website that instructed a visitor’s browser to retrieve data from both the plaintiff’s and defendants’ servers simultaneously and display it all under the plaintiff’s web address.[111] The plaintiffs argued along the Ninth Circuit’s reasoning in Perfect 10 that framing could not be copyright infringement because it does not require possession of a copy.[112] The Leader’s Institute court expressly disagreed with the Ninth Circuit’s holding in Perfect 10—the Copyright Act only requires that a copy be shown to be displayed.[113]
This reading closely aligns with the definition of “display” Congress used when constructing the newest version of the Act in 1976.[114] The Report for the House Committee on the Judiciary for the 1976 revision to the Copyright Act asserts that an infringement occurs if a copy is “transmitted by any method (by closed or open circuit television, for example, or by a computer system) from one place to members of the public located elsewhere” without the permission of the copyright holder.[115] The ambiguity in the use of the word “place” may imply that the framers of the 1976 amendment did not intend to require an infringer to possess a copy to display it. This implication is reinforced when noting that the report expressly addresses the issue of possession in relation to the display right only to note that possession of a copy in the form of a rental or loan does not carry with it a right to display.[116]
The Northern District of California hinted in its opinion in Free Speech Systems, LLC, v. Menzel that, even within the Ninth Circuit, the copyright holder’s display right may be broader than it was portrayed in Perfect 10; however, the court refused to deviate from the boundaries established by the Perfect 10 server test.[117] In Menzel, a news website incorporated nine photographs from a photographer’s website into one of its posts without the photographer’s consent.[118] In response to the news website’s argument that its conduct was protected by Perfect 10, the Menzel court noted that no case outside or within the Ninth Circuit had ever (at that point) applied the server test outside the specific context of search engines.[119]
The court declined to take judicial notice of whether the photographs were copied or embedded in the news website’s post, so it did not discuss the server test any further in its opinion.[120] However, the little discussion it did devote to the subject is enlightening. The court’s emphasis on the inapplicability of the test outside the specific context of search engines indicates that it may have reservations as to the usefulness of the test itself. Menzel was decided in 2019, twelve years after Perfect 10.[121] The Menzel court dealt with a highly developed digital environment, which likely had an impact on its reluctance to embrace Perfect 10’s server test.[122]
III. The Cloud Problem and Potential Solutions
A “cloud” is a web of connected servers and software that allows users to remotely access their data and storage.[123] The cloud got its name because, like a cloud in the sky, it has no single fixed shape and it covers various geographic areas.[124] A cloud’s servers can exist anywhere in the world, but they’re usually located in clusters and are far removed from major population centers.[125]
The individuals and businesses who use cloud servers usually do not own them.[126] Instead, they pay companies like Microsoft or Google to use their clouds and thereby prevent the headaches that come with hosting and managing hardware and software.[127] A cloud, such as OneDrive, contains millions of digital files which can be easily reproduced and almost always exist in more than one place (e.g., a laptop hard drive).[128] This greatly limits the amount of control a copyright owner can extend over any one copy.
Currently, the framework for mediating the conflict between the competing rights of consumers and creators is centered around ownership of physical copies.[129] Further, digital copies are typically treated like physical copies.[130] An owner of a copy of software, for example, has the right to make copies, run them, back them up, or modify them.[131] Copies that are stored on a public cloud server are treated as “fixed” for copyright purposes—the same way they would be if they were stored on a private home server.[132]
However, imagine the following: a cloud server owned by a single service provider stores the data of hundreds of thousands of individuals and businesses.[133] User A uploads a photo of her realistic raccoon drawing to her blog, which uses the cloud. The photo is stored in one of the cloud’s servers. User B sees the photo on the blog and, instead of embedding it, he copies and pastes it into an article he’s writing for a small news website. User A’s blog and User B’s news website happen to both use the same service provider. Obviously, User B is infringing User A’s copyright by displaying her work in his article without her permission. Using the Ninth Circuit’s server test, though, he wouldn’t be committing copyright infringement because his copy is “stored” in the same physical place as the original copy.[134] However, User B is nonetheless “displaying” the copy by “showing” it via device or process (copy-paste).[135] And he is “showing” the copy by “causing or permitting” it to be seen in his article.[136]
The server test provides just enough ambiguity in the law to allow businesses to use social media to profit at the expense of creators. Instead of seeking a license from Getty Images or a similar company, businesses can easily find a suitable image on Instagram and embed it into their webpages for free.[137] The problem is widespread—roughly 70 percent of blogs embed links.[138] The terms and conditions on social media websites often state that users cannot post third-party content without consent, but those same sites nonetheless promote the sharing of third-party content in order to increase their advertising revenue.[139]
On Instagram, copyright owners can attempt to dissuade potential copyright infringers by making their accounts private or by clicking a switch in their settings to disable automatic embedding.[140] However, embedding is still the default, and one must comb through the settings in the Instagram app or website to find the switch.[141] A court may be unlikely consider a copyright owner leaving embedding on a license for others to embed the owner’s content, but this measure alone is only flimsy stop-gap for the problem.[142] Particularly persuasive parties may try to find a way around the setting by requesting a sublicense from Instagram itself.[143]
In Sinclair v. Ziff Davis, Instagram granted a sublicense to Mashable to use a photographer’s photo that she had uploaded to her account on Instagram.[144] Mashable used the sublicense to embed the photo in its article after the photographer did not accept its offer to license the rights directly from her.[145] When the photographer sued Mashable for copyright infringement, the court held that Mashable did not infringe her copyright because she had granted Instagram a permission for to sublicense the photo by agreeing to Instagram’s terms of service when she created her account.[146] The court could not release her from the agreement she had made because it was a valid contract.[147]
As of 2023, Instagram’s terms of service still include the provision that anyone who agrees to it (and you must agree the terms of service to use Instagram) grants Instagram “a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of [their] content.”[148] A copyright owner can only control the content on their profile via their privacy and application settings.[149] So while they can flip the switch to prevent parties from embedding their work, if they keep their profile public to access their market, Instagram maintains the right to use and grant use to others anyway.[150] So in many ways, copyright owners only have the illusion of control over their content.
Instagram’s terms of service are not unique—on Facebook, a user with a public profile is forced by the terms of service to allow anyone who comes across the profile to display the work he or she posts.[151] Unlike traditional contracts, “which are founded on the mutual consent of the parties to agreed terms,” terms of service are contracts of adhesion.[152] Contracts of adhesion are meant to accommodate many agreements between an entity and those who wish to access its products and services at once.[153] As was the case in Ziff Davis, courts typically have no problem enforcing these types of contracts even when there is an obvious imbalance of negotiating power between the contracting parties.[154]
Hypothetically, Instagram could alter its terms of service to no longer allow the granting of a sublicenses to third parties to use content uploaded by Instagram’s users. Its terms could look like those of Pinterest, for example, which restrict Pinterest’s right to license to include only those acts which are carried out on the Pinterest platform.[155]
A. Potential Solution: Instant Licenses
Some have suggested that platforms implement an instant license.[156] An instant license would ideally operate in the form of a “clickwrap agreement,” which requires a user to agree to a set of terms before being allowed to access any content.[157] The agreement would operate as follows: A user clicks on an embedding tool and is confronted with a pop-up that presents a choice to either accept that he or she is a obtaining a license from a copyright owner to use the owner’s image outside the bounds of the social media site or click away and thereby be prevented from using the tool.[158]
It is the opinion of this note that an instant license can be easily customized to meet the needs of both copyright owners and social media companies. It could require a small fee to proceed with embedding, for example, or clearly state that the signor recognizes that the copyright owner may choose to enforce his or her copyright against any unauthorized use. If a social media company would prefer the instant license to be as unobtrusive as possible while also keeping it accessible, the company could place a one or two-sentence statement about copyright on the pop-up along with a link to a webpage that contains the entire text of the license.
Online news outlets, by using an “instant license,” could easily license the photos and videos they find on social media and thereby shield themselves from threats of copyright infringement.[159] The lack of clarity surrounding the application of the fair use doctrine in social media, which journalists have traditionally relied on in the past, would also become less of an issue as journalists could depend on the text of the license to represent that they are operating within the bounds of copyright.[160]
The instant license would also only apply to sharing photos and videos outside the social media website via embedding, so it wouldn’t affect most of the sharing activity that occurs between users within the site. Instagram could keep its license to use users’ social media posts for that purpose. The fundamental nature of social media wouldn’t disappear completely.
Conclusion
Copyright law evolves alongside technological innovation. The United States has had three Copyright Acts since its founding, and each Act was changed several times before being replaced.[161]
The server test relies on outdated logic—it assumes that one must possess a copy to display it.[162] In the past, that made perfect sense: if one wanted to play a film for an audience, he would have to possess a copy of it in the form of a film reel or tape first. But when film is transformed into bits of data and streamed to an audience through an Internet connection, possession becomes a lot less important.[163]
To counter the diminishing value of possession in the copyright analysis, U.S. courts potentially could follow the Southern District of New York’s example and shift their focus from the operation of the technology to the audience’s experience. The physical location of a single server matters little when it is part of a cloud managed by a large company like Apple or Amazon.[164] It’s much simpler to view an Instagram photo embedded on a webpage the same way as a physical copy of the photo hung in a window. In both cases, the photo is being displayed in violation of the owner’s copyright simply because people are viewing it without the copyright owner’s permission.
Any legislation or case law or contract that replaces the server test should prioritize protecting the interests of artists in their works. Alexis Hunley and Matthew Brauer are examples of photographers who depend on copyright to make a profit.[165] When artists like the Hunleys can enjoy the fruit of their creativity, society benefits from the presence of more beautiful photographs.
I J.D Expected 2024, University of Kentucky J. Rosenberg College of Law; BA English 2018, BA Writing, Rhetoric & Digital Studies 2018, University of Kentucky
[2] Hunley v. Instagram, LLC, No. 21-CV-03778-CRB, 2022 WL 298570, at *1 (N.D. Cal. Feb. 1, 2022).
[3] First Amended Complaint for Damages Based on Copyright Infringement at 5, Hunley v. Instagram, LLC, No. 21-CV-03778-CRB, 2022 WL 298570 (N.D. Cal. Feb. 1, 2022); see How has social media changed the world of art?, adobo mag. (Oct. 12, 2022), https://www.adobomagazine.com/press-release/how-has-social-media-changed-the-world-of-art/ [https://perma.cc/HW5W-S7HW].
[4] Hunley, 2022 WL 298570, at *1.
[5] See Perfect 10, Inc. v. Amazon, Inc., 508 F.3d 1146, 1160 (9th Cir. 2007)
[6] Id.
[7] Id. at 1159–62.
[8] Hunley, 2022 WL 298570, at *2.
[9] See The Federalist No. 43 (James Madison); Zvi S. Rosen, Common-Law Copyright, 85 U. Cin. L. Rev. 1055, 1060 (2018).
[10] See Paul Goldstein, Copyright's Highway: From the Printing Press to the Cloud 25–26 (Stanford Univ. Press 2d ed. 2019); see also M. Sophia Newman, So, Gutenberg Didn’t Actually Invent Printing As We Know It, LitHub (June 19, 2019) https://lithub.com/so-gutenberg-didnt-actually-invent-the-printing-press/#:~:text=Do%20this%20many%20times%2C%20and,printing%20of%20the%20aforementioned%20Bible [https://perma.cc/8EJ9-M82B] (explaining that the printing press was created around 1440 and that it allowed for “mass-produced books”).
[11] Diane Leenheer Zimmerman, The Statute of Anne and Its Progeny: Variations without a Theme, 47 Hous. L. Rev. 965, 966 (2010).
[12] Id. at 971–75.
[13] U.S. Const. art. I, § 8, cl. 8.
[14] Zimmerman, supra note 11, at 967.
[15] Copyright Act of 1790, 1 Stat. 124 (1790).
[16] Pamela Samuelson, Evolving Conceptions of Copyright Subject Matter, 78 U. Pitt. L. Rev. 17, 25 (2016).
[17] Goldstein, supra note 10, at 38.
[18] See id.
[19] 17 U.S.C. § 102(a).
[20] See H.R. Rep. No. 94-1476, at 47, 51–52 (1976).
[21] See 17 U.S.C. § 101.
[22] Id.
[23] Aaron Perzanowski & Jason Schultz, The End of Ownership: Personal Property in the Digital Economy 18 (2016).
[24] Id.
[25] See Perzanowski & Schultz, supra note 23, at 36.
[26] Id. at 40.
[27] Id. at 36.
[28] Id. at 36, 40.
[29] H.R. Rep. No. 94-1476, at 61 (1976).
[30] 17 U.S.C. § 106.
[31] Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1159 (9th Cir. 2007).
[32] Hunley v. Instagram, LLC, No. 21-CV-03778-CRB, 2022 WL 298570, at *1 (N.D. Cal. Feb. 1, 2022).
[33] H.R. Rep. No. 94-1476, at 64 (1976).
[34] See generally H.R. Rep. No. 94-1476, at 52 (1976) (“[T]here are unquestionably other areas of existing subject matter that this bill does not propose to protect but that future Congresses may want to.”).
[35] Perfect 10, 508 F.3d at 1159 (9th Cir. 2007).
[36] Id. at 1157.
[37] Id.
[38] Id.
[39] Id.
[40] Id.
[41] Id.
[42] Id. at 1160–61.
[43] Id. at 1159–60.
[44] 17 U.S.C. § 101.
[45] See Perfect 10, 508 F.3d at 1160–61.
[46] 17 U.S.C. § 101.
[47] Perfect 10, 508 F.3d at 1160–61.
[48] Id. at 1155–56.
[49] Jason W. Whitney, Two Cases Raise New Copyright Infringement Concerns for Internet Linking, 37 Comput. & Internet Law., 7, 7 (July 2020).
[50] Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007); see Jane C. Ginsburg & Luke Ali Budiargo, Embedding Content or Interring Copyright: Does the Internet Need the “Server Rule”?, 32 Colum. J. L. & Arts 417, 436 (2019).
[51] Ginsburg & Budiargo, supra note 50, at 435.
[52] Id.
[53] Whitney, supra note 49, at 7.
[54] Id.
[55] See generally Jonathan Bailey, Rethinking Embedding and Framing, PlagiarismToday (Mar. 23, 2021), https://www.plagiarismtoday.com/2021/03/23/rethinking-embedding-and-framing/ [https://perma.cc/HM2W-YCHH ](explaining the differences between framing and embedding).
[56] Ginsburg & Budiargo, supra note 50, at 435–36.
[57] See Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007); Raisa Bruner, A Brief History of Instagram’s Fateful First Day, Time (July 16, 2016), https://time.com/4408374/instagram-anniversary/ [https://perma.cc/89CH-DSZ4]; Hunley v. Instagram, LLC, No. 21-CV-03778-CRB, 2022 WL 298570 (N.D. Cal. Feb. 1, 2022).
[58] Flava Works, Inc. v. Gunter, 689 F.3d 754, 760 (7th Cir. 2012).
[59] Id. at 756, 759.
[60] Id. at 756.
[61] Id.
[62] Id.
[63] Id.
[64] Id. at 757–58.
[65] Id. at 758.
[66] Id.
[67] Steve Henn, Instagram Sells for $1 Billion Despite No Revenue, NPR (Apr. 10, 2012), https://www.npr.org/2012/04/10/150372288/instagram-sells-for-1-billion-despite-no-revenue [https://perma.cc/X3G5-C5QN]; see Flava Works, Inc. v. Gunter, 689 F.3d 754 (7th Cir. 2012).
[68] Id.
[69] Mansoor Iqbal, Instagram Revenue and Usage Data (2024), Bus. of Apps Data (Jan. 8, 2024), https://www.businessofapps.com/data/instagram-statistics/ [https://perma.cc/F243-5TPM].
[70] Digital Advertising Soared 35% to $189 Billion in 2021 According to the IAB Internet Advertising Revenue Report, Interactive Advert. Bureau (Apr. 12, 2022), https://www.iab.com/news/digital-advertising-soared-35-to-189-billion-in-2021-according-to-the-iab-internet-advertising-revenue-report/ [https://perma.cc/H9SR-LPVT].
[71] How to Make Money on Social Media, Accion Opportunity Fund (last visited Apr. 8, 2023) https://aofund.org/resource/make-money-social-media/ [https://perma.cc/HQ6W-TQS4].
[72] 573 U.S. 431 (2014).
[73] Id. at 438.
[74] Id. at 436–37.
[75] Id. at 436.
[76] Id.
[77] Id.
[78] Id. at 437.
[79] Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 398–99 (1968).
[80] Id. at 398.
[81] See id.
[82] See id.
[83] See id. at 398–99.
[84] Id. at 399.
[85] Id. at 390.
[86] Am. Broad. Cos., Inc. v. Aereo, Inc., 573 U.S. 431, 441 (2014).
[87] Id. at 441–42; see 17 U.S.C. § 102; see also Perzanowski & Schultz, supra note 23, at 36 (discussing the expansion of copyright law during the twentieth century).
[88] Aereo, 573 U.S. at 441 (quoting 17 U.S.C. § 101).
[89] Id. at 450.
[90] Id. at 442.
[91] Id. at 441–42.
[92] Id. at 443–44.
[93] Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585, 594–95 (S.D.N.Y. 2018); Nicklen v. Sinclair Broad. Grp., Inc., 551 F. Supp. 3d 188, 195 (S.D.N.Y. 2021).
[94] Breitbart, 302 F. Supp. 3d at 594–95.
[95] Id. at 589.
[96] Id. at 586.
[97] Id.
[98] Id. at 595.
[99] See id. at 593.
[100] Id. at 594.
[101] Nicklen v. Sinclair Broad. Grp., Inc., 551 F. Supp. 3d 188 (S.D.N.Y. 2021).
[102] Id. at 191.
[103] Id. at 192.
[104] Id.
[105] Id.
[106] Id. at 194.
[107] Id.
[108] Id.
[109] Id.
[110] Leader's Inst., LLC v. Jackson, No. 3:14-CV-3572-B, 2017 WL 5629514, at *10 (N.D. Tex. Nov. 22, 2017); see also Ginsburg & Budiargo, supra note 50, at 435 (for further explanation on the concept of “framing”).
[111] Leader's Inst., 2017 WL 5629514, at **10–11.
[112] Id. at *11; see Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007).
[113] Leader's Inst., 2017 WL 5629514, at **11–12 (citing 17 U.S.C. § 101).
[114] See 17 U.S.C. § 101.
[115] H.R. Rep. No. 94-1476, at 80 (1976).
[116] Id.
[117] Free Speech Sys., LLC v. Menzel, 390 F. Supp. 3d 1162, 1171–72 (N.D. Cal. 2019).
[118] Id. at 1166–67.
[119] Id. at 1172.
[120] See id.
[121] Id. at 1162; Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007).
[122] See generally Menzel, 390 F. Supp. 3d at 1166–68, 1171–72 (detailing the background of the case and relevant facts then contrasting the case with Perfect 10).
[123] Perzanowski & Shultz, supra note 23, at 42; Lee Davis & Rob Watts, What is Cloud Computing? The Ultimate Guide, Forbes Advisor (Oct. 19, 2022, 9:20 AM), https://www.forbes.com/advisor/business/what-is-cloud-computing/ [https://perma.cc/P632-8MFB].
[124] Tung-Hui Han, A Prehistory of the Cloud 4 (2015).
[125] See id. at 79.
[126] See James Edmondson, Pros and Cons of Cloud Storage, Bus. Tech Wkly. (Mar. 13, 2022), https://www.businesstechweekly.com/operational-efficiency/clud-computing/pros-and-cons-of-cloud-storage/ [https://perma.cc/JGE5-EXWE].
[127] Tatum Hunter, What Is Cloud Native and Why Is It Important?, builtin (Sept. 25, 2020) https://builtin.com/cloud-computing/what-is-cloud-native [https://perma.cc/X485-XRDV].
[128] See Aaron Perzanowski, You Buy It, You Break It: A Comment on Dispersing the Cloud, 74 Wash. & Lee L. Rev. 527, 527 (2017).
[129] Id. at 527–28; Perzanowski & Shultz, supra note 23, at 40.
[130] Id.
[131] Id. at 41–42.
[132] Id. at 40.
[133] Cf. id. at 44 (providing further examples of how to analogize a server to tangible items).
[134] See Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1159 (9th Cir. 2007).
[135] See Nicklen v. Sinclair Broad. Grp., Inc., 551 F. Supp. 3d 188, 194 (S.D.N.Y. 2021).
[136] See id.
[137] Ginsburg & Budiargo, supra note 50, at 430–31 (quoting Otto v. Hearst Commc'ns, Inc., 345 F. Supp. 3d 412, 482 (S.D.N.Y. 2018)).
[138] Id. at 432.
[139] H. Bosher & S. Yeşiloğlu, An Analysis of the Fundamental Tensions between Copyright and Social Media: The Legal Implications of Sharing Images on Instagram, 33 Int’l Rev. L., Computs. & Tech., 164, 177 (2019).
[140] Kyle Jahner, Embed Copyright Cases Could Multiply as Server Test Faces Siege, Bloomberg L. (Aug. 17, 2021, 5:02 AM), https://news.bloomberglaw.com/ip-law/embed-copyright-cases-could-multiply-as-server-test-faces-siege [https://perma.cc/N4EP-KSCA]; Alicia Wagner Calzada, How Instagram Changed Its Embedding Feature—and What That Means for Photographers and Publishers, Copyright All. (Jan. 20, 2022), https://copyrightalliance.org/how-instagram-changed-embedding-feature/ [https://perma.cc/KY2G-T4LD].
[141] Calzada, supra note 140.
[142] See id.
[143] Id.
[144] Sinclair v. Ziff Davis, LLC, 454 F. Supp. 3d 342, 344 (S.D.N.Y. 2020).
[145] Id. at 343.
[146] Id. at 345.
[147] See id. at 345–46.
[148] Terms of Use, Instagram (July 26, 2022), https://help.instagram.com/581066165581870.
[149] See Calzada, supra note 140.
[150] Terms of Use, Instagram (July 26, 2022), https://help.instagram.com/581066165581870.
[151] Corinne Tan, Regulating Content on Social Media: Copyright, Terms of Service and Technological Features 100 (2018).
[152] Niva Elkin-Koren, Giovanni De Gregorio & Maayan Perel, Social Media as Contractual Networks: A Bottom up Check on Content Moderation, 107 Iowa L. Rev. 987, 1022 (2022).
[153] Id.
[154] Id. at 1023.
[155] Tan, supra note 151, at 100.
[156] Jahner, supra note 140.
[157] Click Wrap Agreements, Greenberg & Lieberman, LLC, https://aplegal.com/education-tools/click-wrap-agreements/ (last visited Apr. 15, 2023) [https://perma.cc/37UW-J88V].
[158] See Chauncey Crail & Jane Haskins, Terms of Use Agreement: What it is & Do You Need it?, Forbes Advisor (Aug. 25, 2022, 1:31 PM), https://www.forbes.com/advisor/business/why-your-website-needs-terms-of-use-agreement/ [https://perma.cc/2E2Q-EVR5].
[159] See generally id. (explaining how clickwrap agreements, which would be the basis of an “instant license,” work and how they shield against copyright infringement).
[160] Patricia Aufderheide, Journalists, Social Media and Copyright: Demystifing Fair Use in the Emergent Digital Environment, 9 J. Bus. & Tech. L. 74, 86–87 (2014); see also supra note 159 and accompanying text (explaining how “instant licenses” could shield online news outlets from threats of copyright infringement).
[161] A Brief History of Copyright in the United States, U.S. Copyright Off. (last visited Apr. 15, 2023), https://www.copyright.gov/timeline/ [https://perma.cc/5F84-QHJ2].
[162] See Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1160–61 (9th Cir. 2007).
[163] See Am. Broad. Cos., Inc. v. Aereo, Inc., 573 U.S. 431, 443–44 (2014).
[164] Perzanowski & Schultz, supra note 23, at 44.
[165] See Hunley v. Instagram, LLC, No. 21-CV-03778-CRB, 2022 WL 298570, at *1 (N.D. Cal. Feb. 1, 2022).