Instagram Pins A Copyright Infringement Case For “En Banc” Exercise.

A major case in the United States could decide the fate of embedding videos and images from social media platforms like Instagram, but the final outcome will be pending an “en banc” exercise.

the woman in gold is holding a sword statue
Justice in gold dress holding sword statue. Photo by Tingey Injury Law Firm

As Reuters explained, this will involve hearing before a panel of 11 judges chosen at random rather than an entire court of appeals. The original 3-panel judge sided Instagram against the photographers and defended the so-called “server test” which stemmed from the case against Amazon brought by Perfect 10, Inc. and the standard basically says that websites are not responsible for copyright infringement of images hosted on other platforms’ servers.

The case involved models whose rights were owned by Perfect 10, Inc. the images displayed in Google image search results. Since the presentation is not a fixed display of the image, Google does not engage in copyright infringement as the image it links to is the one displayed on Perfect 10, Inc.’s servers. Alone.

There’s also an argument about how image embedding is at the heart of much of the infrastructure of many social media websites like Pinterest, but that shouldn’t matter in copyright infringement cases if it does. One of the main issues in the case that went to court here is when news outlets and other major websites use images from Instagram to tell narratives around major events.

Before embedding an image from someone’s Instagram, the agency must obtain permission and/or pay a fee to use it. Embedding an image just acts like it’s nothing, some might argue. It’s hard enough to make a living as a creator and embedding is just another way things are happening that those same critics are highlighting.

Any thoughts you may have about embedding images and videos and the potential for copyright infringement when doing so are welcome in the comments below.

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