A class action brought by photographers and other artists who post material on the social media site Instagram claims that Instagram’s new “embed” feature is encouraging “widespread” copyright infringement, since other sites use the artists’ work without reimbursement.
9th Circuit U.S. District Judge Charles Breyer found that the embed feature did not pass the “server test,” which says that copyright is only infringed if the copyright material is stored on the downstream website’s server. Since the embed feature pulls the image from the server the artist originally posted on (Instagram’s), there is no infringement. This test is contentious in the US, and has been overturned in other circuits, most recently by a Manhattan federal judge, U.S. District Judge Jed Rakoff. The lawyer representing the photographers in the class action says they will likely appeal the decision.
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