Instagram says its terms of service do not confer a sub-license on websites to embed posts from other people. It is reported yesterday that, according to a company spokesperson, Instagram’s policies “require third parties to have the necessary rights from the applicable rights holders.” “It involves ensuring that they have a license to distribute its content if the law demands a license.”
The news followed a legal setback for Newsweek earlier this week, after a New York judge found that a photographer’s lawsuit based on Instagram’s terms of service should not be rejected by the newspaper. Previously, a separate judge ruled that Instagram must sub-license images on pages that incorporate its content, shielding the Mashable platform from legal action. The latest decision does not argue with this conclusion, but Judge Katherine Failla said that there was no proof that Instagram provided such a sublicense.
Now, apparently Instagram is clarifying the situation in favor of the photographers. It did not clarify which part of its policy-protected embedding privileges, but the copyright page specifies that users hold “the right to request permission to use your copyrighted work, as well as the right to prohibit anyone from using your copyrighted work without permission,” with no acknowledgment of embedded content. And the website prohibits the embedding of content in a way that violates “any person’s rights,” including “intellectual property rights.”
Instagram told that it was “exploring” more ways to control embedding for users. Photographers can only avoid embeds for now by making private photos, which narrowly limits their scope on Instagram. Even the Mashable ruling expressed concern about the “expansive transfer of rights” from users by Instagram, so this would address a significant underlying factor in both suits.
It doesn’t mean that Instagram images can’t be seen on pages. Neither judge ruled on what is called the “server test” — an argument that embedded photos do not copy photos in a manner that could infringe copyright, because they simply point to content posted on another site (in this case, Instagram). A tentative 2018 ruling suggested that the server test might not hold up in court, but it could be brought up by Newsweek as a defense, creating a clearer precedent.
Newsweek also has protections if the server check fails, including using the rule of fair use, so it’s not categorically illegal to add an Instagram post. But, by eliminating a shield of legal immunity that will increase the legal risks for embedding an Instagram post — and, based on the rules of other platforms, make embedding posts from another social media website more dangerous.
In this situation, the actions made may have long-lasting consequences for website owners when it comes to user-submitted images to Instagram.