big IANAL on all of this, obvi

Do you see that fox photo1? It’s a great photo, right?

Well, I might just have broken the law.

When you post a picture to Instagram, you grant Instagram a license to use it. They need that license in order to legally show it to people. Now, when I embed that post, do I need a license?

Historically… not exactly. That’s because of the “server test”. Think of it this way: if Instagram goes down for the day, and someone navigates to this page, they will not be able to see the fox photo. That’s because I’m not hosting it myself; this page just contains instructions to their browser to go ask Instagram for the photo, and Instagram’s server sends them the photo. I don’t even have the photo to send someone! In this view, if anyone’s in trouble, it’s got to be Instagram – and they already have a very permissive license from the person who uploaded it to them, so they’re fine.

However, earlier this year, a federal court set a precedent that actually, my embedding this photo would count as a “display” of the photo, which means that it should be assumed to be copyright infringement unless I have permission2.

Looks bad for me and the fox.

But maybe it would still have been okay.

Instagram has a very permissive license, after all, and they’re the ones providing the neat little embed code for this photo that lets me easily tell somebody’s browser how to ask Instagram for the photo. They do that for all photos of all public accounts. So maybe Instagram is granting me a “sublicense” to embed it like I have, so even though I might need permission to embed something, I have that permission indirectly. That’s what a case in April of 2020 said.

Except…

Yikes.

You see, the “server test” comes from the 9th Circuit, and is binding law in California, where most of the tech companies are. But a judge in the 2nd Circuit over in New York, where they had been thinking along the lines of sublicensing, said that actually you don’t necessarily have a sublicense from Instagram – and Instagram has now said explicitly “users of its embedding feature don’t get licenses from Instagram to display photos”.

This is a mess. It might get up to the Supreme Court, but no matter what happens, don’t expect any good solutions as long as lawyers and judges don’t understand technology.

I hope the server test wins out, because the moral responsibility seems to me to lie with Instagram here. They shouldn’t be encouraging people to point to content and providing easy mechanisms to embed content without extending their legal permission to it – and if Instagram users want to post their content without allowing it to be embedded, they should push Instagram to let them disable embeds of their posts3, or to get rid of embeds altogether.

(And if you are actually concerned about actual infringement within this post, know that I picked this photo because I know the photographer – Amanda, feel free to sue for damages; I’ll pay them out in baked goods)

  1. For privacy reasons, some people block Facebook-originating content, so you might not. ↩

  2. Or if it’s fair use, but while fair use is totally Still A (Legal) Thing, it’s effectively useless to normal folks on the modern Internet, if we’re being honest, in the modern litigative environment where just breathing in a courtroom costs $$$. ↩

  3. Right now you can kind of do this, but only at the cost of making your whole account private, which defeats the point of using Instagram for many photographers and artists. ↩