Instagram announces official view that 'using the image embedding function is also copyright infringement'

In response to the case law in the United States that 'displaying an image in an article using Instagram's embedding function does not constitute copyright infringement,' Instagram itself said, 'The embedding function does not permit the use of images.' Answered. He stated the official view that ' even if you use the embedding function, it is a copyright infringement.'

Instagram just threw users of its embedding API under the bus | Ars Technica
https://arstechnica.com/tech-policy/2020/06/instagram-just-threw-users-of-its-embedding-api-under-the-bus/

The photos uploaded on the Internet are copyrighted works taken by someone and cannot be freely quoted or reprinted. The scope and content of copyright, which is the right related to copyrighted works, is defined by the ' copyright law' of each country.

'Author's permission' is required to use the copyrighted work. However, the terms of use of internet services such as Twitter and Instagram include the terms of 'giving permission to use the uploaded image to the internet service side'. Therefore, Internet services such as Instagram are legally allowed to display images on their own services.

Regarding the permission to use the image uploaded by the user to the net service side, in the court, 'If you use the' embed 'function on the net service, it is possible to take over the permission to use the image, so it will be displayed as embedded. No permission from the author is required for the images that are used. ' This claim is based on the specification of the embedding function that 'the image displayed by the embedding function is downloaded from the Internet service side'.

For example, the following shows the video uploaded by Apple to Instagram with the 'embed function'. It seems that Apple's video exists on the GIGAZINE article, but this video is not distributed from GIGAZINE's server, it is distributed from Instagram's server.

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Instagram states in its Terms of Use that 'You may host, use, distribute, modify, operate, copy, perform, publish or translate your content (in accordance with your privacy and app settings). We grant a worldwide license that is non-exclusive, free of charge, transferable, and sublicensable to create derivative works. ' 'License' is accepted. Therefore, there was a claim that sublicense is permitted when using the embedded function of Instagram, and it does not violate the copyright.

These claims have been called 'server testing' because of the logic that focuses on 'which server the work is distributed from'. Server testing has tended to be accepted in court in recent years, and on April 13, 2020, the defense who developed the logic about server testing won, and a first-instance judgment that 'embedding Instagram is not copyright infringement' was given. Cases have also been reported.

'Embedding Instagram is not a copyright infringement' -GIGAZINE

However, Facebook, which operates Instagram, sent a statement to Ars Technica, an IT news site that has reported the series of discussions in detail, that ' Instagram's embedding function does not include permission to use images.' In this statement, Facebook said, 'Our terms of use allow us to sublicense, but the API of the embedded function is not sublicensed.' Platform policy requires that you obtain the required rights from the rights owner. If the court requires a license for the copyrighted work displayed by the embedding function, submit proof that you have obtained a license to share the content. You need to. '

According to Facebook, they are considering a new feature of Instagram that allows users to set 'whether or not to allow photo embedding'. At this stage, if Instagram users want to refuse to quote images with the embed function, they have only the option of 'private account' or 'delete the photo from Instagram'. If this feature is implemented, it will give you a new option to 'reject the embed feature'.

Ars Technica commented on a series of discussions: 'Server testing is recognized as a binding law in the 9th Circuit, including California, where many tech companies are based, but things are different in other Circuits. The fact that images are distributed from Instagram's servers when using the embedding feature is immutable, so it will be more important in court than ever to accept the logic of server testing. ' It is written as.