Alexis Hunley v. Instagram, LLC

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEXIS HUNLEY; MATTHEW No. 22-15293
SCOTT BRAUER, Individually and
On Behalf of All Others Similarly D.C. No. 3:21-cv-
Situated, 03778-CRB
Plaintiffs-Appellants,
v.
OPINION
INSTAGRAM, LLC,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted February 6, 2023
San Francisco, California
Filed July 17, 2023
Before: Jay S. Bybee and Patrick J. Bumatay, Circuit
Judges, and Richard D. Bennett, * District Judge.
Opinion by Judge Bybee
*
The Honorable Richard D. Bennett, United States District Judge for the
District of Maryland, sitting by designation.
2 HUNLEY V. INSTAGRAM, LLC
SUMMARY **
Copyright
The panel affirmed the district court’s dismissal of an
action brought by two photographers under the Copyright
Act alleging that Instagram, LLC, violated their exclusive
display right by permitting third-party sites to embed the
photographers’ Instagram content.
The panel held that, under Perfect 10 v. Amazon, 508
F.3d 1146 (9th Cir. 2007), Instagram could not be liable for
secondary infringement because embedding a photo does not
"display a copy" of the underlying image. Perfect 10 set
forth the “Server Test,” which provides that a copy of a
photographic image is not displayed when it is not fixed in a
computer’s memory. The panel held that Perfect 10 did not
restrict the application of the Server Test to a specific type
of website, such as search engines. Arguments that
Perfect10 is inconsistent with the Copyright Act are
foreclosed by Perfect 10 outside of an en banc
proceeding. And Perfect 10 was not effectively overturned
by American Broadcasting Co. v. Aereo, 573 U.S. 431(2014), which held that a streaming provider infringed
broadcasters’ exclusive right of public performance.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
HUNLEY V. INSTAGRAM, LLC 3
COUNSEL
Solomon B. Cera (argued) and Pamela A. Markert, Cera
LLP, San Francisco, California; Todd Friedman and Adrian
R. Bacon, Law Offices of Todd M. Friedman P.C.,
Woodland Hills, California; James H. Bartolomei III,
Duncan Firm P.A., Little Rock, Arkansas; Bryan D. Hoben,
Hoben Law, Peekskill, New York; for Plaintiffs-Appellants.
Joseph C. Gratz (argued) and Ragesh K. Tangri, Morrison
and Foerster LLP, San Francisco, California; Annie A. Lee,
Durie Tangri LLP, San Francisco, California; Allyson R.
Bennett, Morrison and Foerster LLP, Los Angeles,
California; for Defendant-Appellee.
Stephen M. Doniger, Doniger/Burroughs PC, Venice,
California; Michael P. Manapol, Beverly Hills, California;
Mickey H. Osterreicher and Alicia Wagner Calzada,
National Press Photographers Association, Athens, Georgia;
for Amici Curiae American Photographic Artists, National
Press Photographers Association, The Graphic Artists Guild,
and Five Other Photography and Media Licensing
Organizations.
Rebecca Tushnet, Lex Lumina PLLC, New York, New
York, for Amici Curiae Google LLC, Pinterest Inc., Twitter
Inc., and the Wikimedia Foundation Inc.
Amy Mason Saharia and D. Shayon Ghosh, Williams &
Connolly LLP, Washington, D.C., for Amicus Curiae
Internet Society.
Mitchell L. Stoltz and Cara Gagliano, Electronic Frontier
Foundation, San Francisco, California; Alexandra
Sternburg, Computer & Communications Industry
Association, Washington, D.C.; Rachel B. Leswing, Authors
4 HUNLEY V. INSTAGRAM, LLC
Alliance, Berkeley, California; for Amici Curiae Electronic
Frontier Foundation, Computer & Communications Industry
Association, American Library Association, Association of
Research Libraries, Association of College & Research
Libraries, Authors Alliance, and the Organization for
Transformative Works.
OPINION
BYBEE, Circuit Judge:
This copyright dispute tests the limits of our holding in
Perfect 10 v. Amazon, 508 F.3d 1146 (9th Cir. 2007) in light
of the Supreme Court’s subsequent decision in American
Broadcasting Companies, Inc. v. Aereo, 573 U.S. 431(2014). Plaintiffs-appellees Alexis Hunley and Matthew
Scott Brauer (collectively “Hunley”) are photographers who
sued defendant Instagram for copyright infringement.
Hunley alleges that Instagram violates their exclusive
display right by permitting third-party sites to embed the
photographers’ Instagram content. See 17 U.S.C. § 106(5).
The district court held that Instagram could not be liable for
secondary infringement because embedding a photo does not
“display a copy” of the underlying images under Perfect 10.
We agree with the district court that Perfect 10
forecloses relief in this case. Accordingly, we affirm.
HUNLEY V. INSTAGRAM, LLC 5
I. FACTS AND PROCEEDINGS
A. Facts
1. The Background
Instagram is a social media platform where users share
photo and video content to their followers. Users with public
profiles grant Instagram a royalty-free sublicense to display
their photos. Instagram’s infrastructure also allows third-
party websites to “embed” public Instagram posts.
Embedding 1 is a method that allows a third-party website
(the embedding website) to incorporate content directly from
the website where it originally appeared (the host website).
Websites are created using instructions written in Hypertext
Markup Language (“HTML”). Perfect 10, 508 F.3d at 1155.
HTML is a text-only code, meaning that the underlying
HTML instructions cannot contain images. Instead, when a
website wants to include an image, “the HTML instructions
on the web[site] provide an address for where the images are
stored, whether in the web[site] publisher’s computer or
some other computer.” Id.Users access a website through a web browser
application. Id. When a web creator wants to include an
image on a website, the web creator will write HTML
instructions that direct the user’s web browser to retrieve the
image from a specific location on a server and display it
according to the website’s formatting requirements. When
the image is located on the same server as the website, the
HTML will include the file name of that image. So for
example, if the National Parks Service wants to display a
1
We have sometimes referred to embedding as “in-line linking” or
“framing.”
6 HUNLEY V. INSTAGRAM, LLC
photo of Joshua Tree National Park located on its own
server, it will write HTML instructions directing the browser
to display the image file, <img src=“Joshua_Tree.jpg”>, and
the browser will retrieve and display the photo, hosted by the
NPS server. By contrast, if an external website wants to
include an image that is not located on its own servers, it will
use HTML instructions to “embed” the image from another
website’s server. To do so, the embedding website creator
will use HTML instructions directing the browser to retrieve
and display an image from an outside website rather than an
image file. So if the embedding website wants to show the
National Park Service’s Instagram post featuring Joshua
Tree National Park—content that is not on the embedding
website’s same server—it will direct the browser to retrieve
and display content from the Instagram’s server. The HTML
instructions that direct a browser to embed an external social
media post look something like this:
<blockquote class="instagram-media" data-instgrm-captioned data-
instgrm-
permalink="https://www.instagram.com/p/Cso5eUUvWC4/?utm_sourc
e=ig_embed&amp;utm_campaign=loading" data-instgrm-version="14"
style=" background:#FFF; border:0; border-radius:3px; box-shadow:0 0
1px 0 rgba(0,0,0,0.5),0 1px 10px 0 rgba(0,0,0,0.15); margin: 1px; max-
width:540px; min-width:326px; padding:0; width:99.375%; width:-
webkit-calc(100% - 2px); width:calc(100% - 2px);"><div
style="padding:16px;"> <a
href="https://www.instagram.com/p/Cso5eUUvWC4/?utm_source=ig_e
mbed&amp;utm_campaign=loading" style=" background:#FFFFFF;
line-height:0; padding:0 0; text-align:center; text-decoration:none;
width:100%;" target="_blank"> <div style=" display: flex; flex-
direction: row; align-items: center;"> <div style="background-color:
#F4F4F4; border-radius: 50%; flex-grow: 0; height: 40px; margin-right:
14px; width: 40px;"></div> <div style="display: flex; flex-direction:
column; flex-grow: 1; justify-content: center;"> <div style="
background-color: #F4F4F4; border-radius: 4px; flex-grow: 0; height:
14px; margin-bottom: 6px; width: 100px;"></div> <div style="
background-color: #F4F4F4; border-radius: 4px; flex-grow: 0; height:
14px; width: 60px;"></div></div></div><div style="padding: 19%
HUNLEY V. INSTAGRAM, LLC 7
0;"></div> <div style="display:block; height:50px; margin:0 auto 12px;
width:50px;"><svg width="50px" height="50px" viewBox="0 0 60 60"
version="1.1" xmlns="https://www.w3.org/2000/svg"
xmlns:xlink="https://www.w3.org/1999/xlink"><g stroke="none"
stroke-width="1" fill="none" fill-rule="evenodd"><g
transform="translate(-511.000000, -20.000000)"
fill="#000000"><g><path d="M556.869,30.41. . . . <div style="
background-color: #F4F4F4; border-radius: 50%; flex-grow: 0; height:
20px; width: 20px;"></div> <div style=" width: 0; height: 0; border-top:
2px solid transparent; border-left: 6px solid #f4f4f4; border-bottom: 2px
solid transparent; transform: translateX(16px) translateY(-4px)
rotate(30deg)"></div></div><div style="margin-left: auto;"> <div
style=" width: 0px; border-top: 8px solid #F4F4F4; border-right: 8px
solid transparent; transform: translateY(16px);"></div> <div style="
background-color: #F4F4F4; flex-grow: 0; height: 12px; width: 16px;
transform: translateY(-4px);"></div> <div style=" width: 0; height: 0;
border-top: 8px solid #F4F4F4; border-left: 8px solid transparent;
transform: translateY(-4px) translateX(8px);"></div></div></div> <div
style="display: flex; flex-direction: column; flex-grow: 1; justify-
content: center; margin-bottom: 24px;"> <div style=" background-color:
#F4F4F4; border-radius: 4px; flex-grow: 0; height: 14px; margin-
bottom: 6px; width: 224px;"></div> <div style=" background-color:
#F4F4F4; border-radius: 4px; flex-grow: 0; height: 14px; width:
144px;"></div></div></a><p style=" color:#c9c8cd; font-
family:Arial,sans-serif; font-size:14px; line-height:17px; margin-
bottom:0; margin-top:8px; overflow:hidden; padding:8px 0 7px; text-
align:center; text-overflow:ellipsis; white-space:nowrap;"><a
href="https://www.instagram.com/p/Cso5eUUvWC4/?utm_source=ig_e
mbed&amp;utm_campaign=loading" style=" color:#c9c8cd; font-
family:Arial,sans-serif; font-size:14px; font-style:normal; font-
weight:normal; line-height:17px; text-decoration:none;"
target="_blank">A post shared by National Park Service
(@nationalparkservice)</a></p></div></blockquote> <script async
src="//www.instagram.com/embed.js"></script>
When the browser follows these HTML instructions, the
browser will retrieve the image, caption, and formatting
from the host website and display all these elements
alongside content from the embedding website. The final
product will show the external image “embedded”
seamlessly into a third-party website.
8 HUNLEY V. INSTAGRAM, LLC
As illustrated by the HTML instructions above,
embedding is different from merely providing a hyperlink.
Hyperlinking gives the URL address where external content
is located directly to a user. To access that content, the user
must click on the URL to open the linked website in its
entirety. By contrast, embedding provides instructions to the
browser, and the browser automatically retrieves and shows
the content from the host website in the format specified by
the embedding website. Embedding therefore allows users
to see the content itself—not merely the address—on the
embedding website without navigating away from the site.
Courts have generally held that hyperlinking does not
constitute direct infringement. See, e.g., Online Pol’y Grp.
v. Diebold, Inc., 337 F. Supp. 2d 1195, 1202 n.12 (N.D. Cal.
2004) (“[H]yperlinking per se does not constitute direct
infringement because there is no copying, [but] in some
instances there may be a tenable claim of contributory
infringement or vicarious liability.”); MyPlayCity, Inc. v.
Conduit Ltd., 2012 WL 1107648, at *12 (S.D.N.Y. Mar. 20,
2012) (collecting cases), adhered to on reconsideration,
2012 WL 2929392 (S.D.N.Y. July 18, 2012).
From the user’s perspective, embedding is entirely
passive: the embedding website directs the user’s own
browser to the Instagram account and the Instagram content
appears as part of the embedding website’s content. The
embedding website appears to the user to have included the
copyrighted material in its content. In reality, the embedding
website has directed the reader’s browser to retrieve the
public Instagram account and juxtapose it on the embedding
website. Showing the Instagram content is almost
instantaneous.
Importantly, the embedding website does not store a
copy of the underlying image. Rather, embedding allows
HUNLEY V. INSTAGRAM, LLC 9
multiple websites to incorporate content stored on a single
server simultaneously. The host server can control whether
embedding is available to other websites and what image
appears at a specific address. The host server can also delete
or replace the image. For example, the National Park
Service could replace the picture of Joshua Tree at
<Joshua_Tree.jpg> with a picture of Canyonlands National
Park. So long as the HTML instructions from the third-party
site instruct the browser to retrieve the image located at a
specific address, the browser will retrieve whatever the host
server supplies at that location.
2. This case
Hunley and Brauer are photographers who own the
copyrights to several of their works. Both have public
Instagram profiles where they post some of their
photography.
BuzzFeed News and Time are platforms that share news
content online. On June 3, 2020, during the Black Lives
Matter protests, BuzzFeed News published an article titled
“17 Powerful Pictures Of The Protests Through The Eyes of
Black Photographers.” As part of that article, BuzzFeed
embedded one of Hunley’s Instagram posts. The embedded
image showed Hunley’s Instagram username (called her
“handle”) followed by Hunley’s photograph, which featured
the hands of a protestor juxtaposed with a line of police
officers:
10 HUNLEY V. INSTAGRAM, LLC
Hunley owns the copyright to this photograph. BuzzFeed
did not seek a license from Hunley to display this photo as
part of its news reporting, nor did BuzzFeed seek
authorization directly from Instagram. 2 BuzzFeed never
2
Websites that embed Instagram’s content are bound by Instagram’s
Platform Policy, and Instagram does not grant third parties a license to
users’ works. Rather, Instagram maintains that third-party sites have the
responsibility to seek permission from the copyright holder as “required
HUNLEY V. INSTAGRAM, LLC 11
created a copy of or stored the underlying photo. Instead,
BuzzFeed used HTML, provided by a feature on Instagram’s
platform, to embed the Instagram post containing the photo,
which made Hunley’s Instagram post appear on BuzzFeed’s
website alongside BuzzFeed’s own content.
Similarly, Time published an article on January 31, 2016,
titled “These Photographers Are Covering the Presidential
Campaign on Instagram.” As part of that article, Time
embedded one of Brauer’s Instagram posts, featuring a
copyrighted photo of candidate Hillary Clinton:
by law.” According to Hunley, no third party obtained permission from
Instagram to embed copyrighted content.
12 HUNLEY V. INSTAGRAM, LLC
The post showed Brauer’s Instagram post in its entirety.
Time did not seek a license from Brauer or permission from
Instagram to display this photo. Because Time embedded
Brauer’s Instagram post containing the photo, Time never
stored or made a copy of Brauer’s photo. Instead, the
embedding instructions caused Brauer’s Instagram post to
appear on Time’s website alongside Time’s own content.
HUNLEY V. INSTAGRAM, LLC 13
B. Proceedings Below
Hunley and Brauer brought a class action suit against
Instagram on behalf of other copyright owners whose work
was “caused to be displayed via Instagram’s embedding tool
on a third party website without the copyright owner’s
consent.” Hunley alleged that Instagram’s embedding tool
violated her exclusive display right under the Copyright Act
by enabling third-party websites such as BuzzFeed and Time
to display copyrighted photos posted to Instagram. See 17
U.S.C. § 106(5). Hunley brought three causes of action
against Instagram: inducement of copyright infringement,
contributory copyright infringement, and vicarious
copyright infringement. Hunley alleged that “Instagram
intentionally and brazenly encouraged, aided and induced
third party embedd[ing websites] to cause to be displayed
copyrighted photos and videos without making any effort to
control or stop the rampant infringement” while “knowingly
participating in such conduct.” 3
Hunley conceded that Instagram is not a direct infringer,
and these theories of secondary liability all rely on the
existence of direct infringement by BuzzFeed and Time. See
Perfect 10, Inc. v. Giganews, 847 F.3d 657, 671 (9th Cir.
2017) (“Giganews”). Hunley thus alleged that third-party
embedding websites, BuzzFeed and Time, infringed her
display right even though they did not host or store a copy
of the underlying image. Hunley sought damages and
injunctive relief.
3
Hunley alleged that Instagram made embedding available to create a
revenue stream for its photo-sharing platform, and that Instagram “reaps
billions of dollars annually” from encouraging third parties to embed
Instagram content.
14 HUNLEY V. INSTAGRAM, LLC
Instagram filed a motion to dismiss, which the district
court granted. The district court concluded that our holding
in Perfect 10 precluded relief to Hunley. To violate the
public display right, infringers must “display ‘copies’ of the
copyrighted work.” 17 U.S.C. § 101. According to the
district court, embedding websites that do not “‘store’ an
image or video” do not “‘communicate a copy’ of the image
or video and thus do[] not violate the copyright owner’s
exclusive display right.” See Perfect 10, 508 F.3d at 1160–
61. Applying Perfect 10, the district court explained:
[BuzzFeed and Time] do not violate
Instagram users’ exclusive display rights.
Because they do not store the images and
videos, they do not “fix” the copyrighted
work in any “tangible medium of
expression.” Therefore, when they embed
the images and videos, they do not display
“copies” of the copyrighted work.
And without direct infringement by BuzzFeed or Time,
Instagram could not be held secondarily liable. The district
court also rejected Hunley’s arguments that Perfect 10 was
limited to search engines and that Perfect 10 conflicted with
the Supreme Court’s decision in Aereo, 573 U.S. 431.
In February 2022, the district court denied Hunley leave
to amend because “the deficiency in Hunley’s first two
complaints cannot be cured.” Hunley’s amended complaint
still alleged that Instagram’s servers—not those of BuzzFeed
or Time—hosted the infringing images. The district court
concluded that the “only fact that matters” for infringement
purposes is storing the photos on servers, and that because
Hunley could not remedy this issue, “amendment would be
HUNLEY V. INSTAGRAM, LLC 15
futile.” The district court dismissed the action with
prejudice, and Hunley timely appealed.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we review de novo the district court’s dismissal under Rule
12(b)(6). CallerID4u, Inc. v. MCI Commc'ns Servs. Inc.,
880 F.3d 1048, 1061 (9th Cir. 2018).
III. ANALYSIS
We begin our analysis with the legal framework of the
Copyright Act, including our interpretation of the Act in
Perfect 10. We will then consider Hunley’s legal and policy
arguments for limiting the scope of Perfect 10. We conclude
by applying Perfect 10 to this case.
A. The Copyright Act and Perfect 10
1. The Right of Public Display
The Copyright Act grants authors the exclusive right “to
display the copyrighted work publicly.” 17 U.S.C. § 106(5).
To infringe this exclusive right to public display, the
infringer must “show a copy of [the work], either directly or
by means of a film, slide, television image, or any other
device or process.” 17 U.S.C. § 101 (definition of “display”).
The Copyright Act defines “copies” as “material objects . . .
in which a work is fixed by any method now known or later
developed, and from which the work can be perceived,
reproduced, or otherwise communicated, either directly or
with the aid of a machine or device.” Id. (definition of
“Copies”). For copyright purposes, “copy” does not
necessarily mean a duplicate of the original, but includes the
original itself: “The term ‘copies’ includes the material
object . . . in which the work is first fixed.” Id. (definition of
16 HUNLEY V. INSTAGRAM, LLC
“Copies”). And “[a] work is ‘fixed’ in a tangible medium
of expression when its embodiment in a copy . . . is
sufficiently permanent or stable to permit it to be perceived,
reproduced, or otherwise communicated for a period of more
than transitory duration.” Id. (definition of “fixed”).
The Copyright Act went through significant amending in
1976. Those amendments clarified that the public display
right can also be infringed by a transmission. See Public
Law 94-533 (Oct. 19, 1976). The amended statute states in
relevant part:
To perform or display a work “publicly”
means
(1) to perform or display it at a place open to
the public or at any place where a substantial
number of persons outside of a normal circle
of a family and its social acquaintances is
gathered; or
(2) to transmit or otherwise communicate a
performance or display of the work to a place
specified by clause (1) or to the public, by
means of any device or process, whether the
members of the public capable of receiving
the performance or display receive it in the
same place or in separate places and at the
same time or at different times.
17 U.S.C. § 101 (definition of “publicly”). Part (2) of this
definition is know as the Transmit Clause. To “transmit” a
display means “to communicate it by any device or process
whereby images or sounds are received beyond the place
from which they are sent.” Id. (definition of “transmit”). By
HUNLEY V. INSTAGRAM, LLC 17
this definition, an internet communication of an image
necessarily implicates the Transmit Clause. Perfect 10, 508
F.3d at 1161 n.7. A transmitted image is “fixed” for
copyright purposes “if a fixation of the work is being made
simultaneously with its transmission.” 17 U.S.C. § 101(definition of “fixed”).
In sum, infringing the exclusive right of public display
requires the transmission of a display. For a display to be
actionable, it must display a copy. A copy means either an
original or a duplicate that is fixed, and fixation requires
embodiment in a perceivable format. See generally 17
U.S.C. § 101.
2. Perfect 10 Interprets 17 U.S.C. § 106(5)
In Perfect 10 v. Amazon, Inc., we decided for the first
time “when a computer displays a copyrighted work for
purposes of section 106(5),” the right to public display. 508
F.3d at 1160. In that case, Perfect 10, an online magazine
that marketed photos of nude models, sued Amazon and
Google for showing Perfect 10’s copyrighted images on their
websites. Id. at 1157. Perfect 10 alleged that Google
infringed its public display right by including pared-down
thumbnail images in Google Image Search results and by
embedding full-sized images from third-party websites,
which posted copyrighted images without permission. Id.Google’s embedding feature worked in the following
manner:
When a user clicks on a thumbnail image, the
user’s browser program interprets HTML
instructions on Google’s webpage.
Following these instructions, the browser
creates a “window”: the infringing image
18 HUNLEY V. INSTAGRAM, LLC
appeared “in its original context[] on the
lower portion of the window on the user’s
computer screen[,] framed by information
from Google. Google did not host or store
the image that filled the bottom part of the
screen, nor did Google communicate the
images to the user: the browser, following
directions from Google, accessed the third-
party website and relayed it to the user.
Id. at 1155–57.
We interpreted the Copyright Act’s fixation requirement
and found that an image is “fixed in a tangible medium of
expression” when it is “embodied (i.e., stored) in a
computer’s server, (or hard disk, or other storage device).”
Id. at 1160 (citing MAI Sys. Corp. v. Peak Computer, Inc.,
991 F.2d 511, 517–18 (9th Cir. 1993)). Applying that
interpretation, we concluded that a “computer owner shows
a copy ‘by means of a . . . device or process’ when the owner
uses the computer to fill the computer screen with the
photographic image stored on that computer.” Id. (quoting
17 U.S.C. § 101. And “a person displays a photographic
image by using a computer to fill a computer screen with a
copy of the photographic image fixed in the computer's
memory.” Id. This requirement that a copy be “fixed in the
computer’s memory” has come to be known as the “Server
Test.” See id. at 1159 (“The district court referred to this test
as the ‘server test.’”) (quoting Perfect 10 v. Google, Inc., 416
F. Supp. 2d 828, 838–39 (C.D. Cal. 2006)); Free Speech
Sys., LLC v. Menzel, 390 F. Supp. 3d 1162, 1171 (N.D. Cal.
2019).
Applying the Server Test to the facts, we concluded that
Google’s in-line linking (what we now call embedding) did
HUNLEY V. INSTAGRAM, LLC 19
not display a “copy” of Perfect 10's copyrighted images as
that term is defined in the Copyright Act. Id. at 1160–61.
Because Google did not store a copy of the full-size images,
but merely embedded them and allowed them to be
displayed alongside its search results, “Google does not have
a copy of the images for purposes of the Copyright Act.” Id.Without a copy on its servers, “Google transmits or
communicates only an address which directs a user’s
browser to the location where a copy of the full-size image
is displayed. Google does not communicate a display of the
work itself.” Id. at 1161 n.7. Although “Google may [have]
facilitate[d] the user’s access to infringing images,” we
concluded that “such assistance . . . does not constitute direct
infringement.” Id. at 1161.
B. Arguments for Limiting the Server Test
The district court held that Perfect 10 governed this case.
On appeal, as before the district court, Hunley argues that
Perfect 10’s Server Test does not determine the outcome in
this case. First, Hunley argues that the Server Test should
only apply to search engines such as Google. Second,
Hunley argues that Perfect 10 is inconsistent with the
Copyright Act. Third, Hunley argues that Perfect 10
conflicts with the Supreme Court’s subsequent decision in
American Broadcasting Co. v. Aereo, 573 U.S. 431 (2014).
Fourth and finally, Hunley argues that there are policy
reasons for overruling Perfect 10. We disagree with each of
these claims, and we will address each in turn.
1. Whether Perfect 10 should be limited to specific types
of websites
Hunley argues that the Server Test should apply only “to
search engines or other automated, algorithmic indexing
platforms” and should not extend to “content embedded into
20 HUNLEY V. INSTAGRAM, LLC
commercial websites from social media platforms.”
Hunley’s argument finds no support in our law.
Perfect 10 did not restrict the application of the Server
Test to a specific type of website, such as search engines. To
be sure, in Perfect 10, we considered the technical
specifications of Google Image Search, including Google’s
ability to index third-party websites in its search results.
Perfect 10, 508 F.3d at 1155. We also noted Google’s
reliance on an automated process for searching vast amounts
of data: to create such a search engine, Google
“automatically accesses thousands of websites . . . and
indexes them within a database” and “Google’s computer
program selects the advertising automatically by means of
an algorithm.” Id. at 1155–56. But in articulating the Server
Test, we did not rely on the unique context of a search
engine. Our holding relied on the “plain language” of the
Copyright Act and our own precedent describing when a
copy is “fixed” in a tangible medium of expression. Id.(citing 17 U.S.C. § 101). We looked to MAI Sys. Corp. v.
Peak Computer, Inc., for the conclusion that a digital image
is “fixed” when it is stored in a server, hard disk, or other
storage device. 991 F.2d 511, 517–18 (9th Cir. 1993).
Applying this fixation requirement to the internet
infrastructure, we concluded that in the embedding context,
a website must store the image on its own server to directly
infringe the public display right. Perfect 10, 508 F.3d at
1160.
We have subsequently applied the Server Test outside
the search-engine context. For example, in Bell v. Wilmott
Storage Servs., LLC, 12 F.4th 1065 (9th Cir. 2021), a
photographer sued a storage-service website over its use of
his photo of the Indianapolis skyline. Although the image
was not shown directly on Wilmott Storage Services’s
HUNLEY V. INSTAGRAM, LLC 21
website, it was visible through a “reverse image search.” Id.
at 1073. Because it was “undisputed” that the infringing
photos were stored on Wilmott’s own server, “Wilmott
transmitted, and therefore displayed, the Indianapolis photo
without Bell’s permission.” We concluded that the storage
and display was sufficient to hold Wilmott directly liable
under the Copyright Act. Id. We have also applied the
Server Test to blogs, see Perfect 10, Inc. v. Google, Inc., 653
F.3d 976, 978 (9th Cir. 2011) (noting that “Blogger account
holders may upload images from the web onto Google’s
server in order to post them on their blogs, or may use a
hyperlink to images hosted on other servers.”), and to online
bulletin boards, Evox Prods., LLC v. Verizon Media, Inc.,
No. 21-56046, 2022 WL 17430309, at *1–2 (9th Cir. Dec. 6,
2022) (unpublished) (holding Verizon liable for infringing
the display right when it stored the image on its Yahoo Autos
and Tumblr servers after its license with copyright owners
had expired).
Hunley points out that other circuits have not adopted the
Server Test. The statement is true, but of little use to Hunley.
At least two circuits have referred to the Server Test without
either endorsing or rejecting it. In Soc'y of Holy
Transfiguration Monastery, Inc. v. Gregory, 689 F.3d 29, 55
(1st Cir. 2012), the First Circuit cited Perfect 10’s Server
Test when it noted that the infringing images “were
embodied in a medium (here, the computer server and
internet) where they could be perceived . . . by those who
accessed the server.” Id. The Gregory court declined to
adopt or reject the Server Test:
Although the question of whether a computer
has “displayed” a copyrighted work may be a
difficult one in other contexts, see, e.g.,
22 HUNLEY V. INSTAGRAM, LLC
Perfect 10, 508 F.3d at 1160–62, it is beyond
question here that the Archbishop has
“displayed” the Works on his website. We
need not delineate the outer bounds of the
scope of the term “display” where, as here,
the fact that the Works were “displayed” on
the Archbishop's website is undisputed.
Id. at 55. Similarly, the Seventh Circuit cited with approval
Perfect 10’s distinction between direct and secondary
infringement in Flava Works, Inc. v. Gunter, 689 F.3d 754(7th Cir. 2012), a public performance case. The Flava
Works court observed that “myVidster is giving web surfers
addresses where they can find entertainment.” Id. at 761.
Citing Perfect 10 and offering analysis consistent with the
Server Test, the court stated:
By listing plays and giving the name and
address of the theaters where they are being
performed, the New Yorker is not performing
them. It is not “transmitting or
communicating” them. Is myVidster doing
anything different? To call the provision of
contact information transmission or
communication and thus make myVidster a
direct infringer would blur the distinction
between direct and contributory infringement
and by doing so make the provider of such
information an infringer even if he didn’t
know that the work to which he was directing
a visitor to his website was copyrighted.
Id. at 761 (citing, inter alia, Perfect 10, 508 F.3d at 1159–
61).
HUNLEY V. INSTAGRAM, LLC 23
Although no circuit has disapproved of Perfect 10,
several district courts have either rejected or limited the
Server Test. See, e.g., McGucken v. Newsweek, 2022 WL
836786 (S.D.N.Y 2022) (rejecting the Server Test); Nicklen
v. Sinclair Broad. Grp., Inc., F. Supp. 3d 188 (S.D.N.Y
2021) (rejecting the Server Test); Goldman v. Breitbart, 302
F. Supp. 3d 585, 586 (S.D.N.Y 2018) (holding that
publishing an embedded tweet featuring Tom Brady was
sufficient for direct infringement, even if Twitter did not
store or host the infringing image); Leader’s Institute, LLC
v. Jackson, 2017 WL 5629514 (N.D. Tex. Nov. 22, 2017)
(“[t]o the extent Perfect 10 makes actual possession of a
copy a necessary condition to violating a copyright owner’s
exclusive right to display her copyrighted works, the Court
respectfully disagrees with the Ninth Circuit.”).
We have not limited Perfect 10 to search engines, and it
is too late to argue that it is so limited. The application of
the Server Test depends on the method used for displaying a
photo—not the context in which the photo is displayed. And
the process used by BuzzFeed and Time to show users third-
party Instagram content is the same process used by Google
to show users third-party images: embedding. Nothing in
Perfect 10 or the cases following it limits its application to
search engines.
2. Whether Perfect 10 Is inconsistent with the Copyright
Act
Hunley argues that applying the Server Test to social
media platforms is inconsistent with the Copyright Act’s
statutory scheme. Hunley claims that the Server Test
conflates the copyright holder’s exclusive right to display a
work with his exclusive right to reproduce the work.
Specifically, Hunley contends that after Perfect 10 an
24 HUNLEY V. INSTAGRAM, LLC
infringer must violate the copyright holder’s reproduction
right before the display right can be violated. This, Hunley
says, renders portions of the Copyright Act superfluous or
insignificant. See 17 U.S.C. § 106(1), (3). Hunley also
claims that the Server Test cannot be reconciled with other
provisions of the Copyright Act that prohibit transmissions
by a party, whether or not the party possesses or controls a
copy of the work allegedly infringed. And Hunley argues
that the Server Test is inconsistent with other provisions
related to “secondary transmissions of a performance or
display.” 17 U.S.C. § 111; see also id. § 118–19. According
to Hunley, “The Server Test, applied to a social media
platform, contains an insupportable assumption that a
transmission can have only one actionable source, and that
such source must only be the place where the physical copy
of the work is hosted.”
We will not consider these arguments in any detail
because they are foreclosed by Perfect 10. Whatever merit
these arguments might have in other contexts, Perfect 10
states the rule for infringing the public display right using
embedding. See, e.g., Perfect 10, 508 F.3d at 1162(discussing copies “in the electronic context”). In Perfect
10, we did not address the precise arguments Hunley now
presses, but we carefully considered display and distribution
rights. See id. at 1159–63. Even if we thought, in retrospect,
that Perfect 10 created some inconsistencies with other
provisions of the Copyright Act, we are not free to overrule
Perfect 10 outside of an en banc proceeding unless there has
been a change in the statute or an intervening Supreme Court
decision. See Langere v. Verizon Wireless Servs., LLC, 983
F.3d 1115, 1121 (9th Cir. 2020). For the reasons described
infra, we find no such intervening authority.
HUNLEY V. INSTAGRAM, LLC 25
We have a similar response to Hunley’s arguments
concerning the Copyright Act’s legislative history. Hunley
identified various passages of legislative history from 1965,
1967, and 1976 to show that Perfect 10 took an
unnecessarily narrow view of the meaning of “display.” We
have already given the statute a definitive reading in Perfect
10, and we will not revisit a decision in light of materials
available at the time of the decision. The Act’s legislative
history is not law. See Nw. Env't Def. Ctr. v. Bonneville
Power Admin., 477 F.3d 668, 684 (9th Cir. 2007). If we look
to legislative history at all, we will only recur to it as an aid
to understanding an ambiguous text. See Haro v. City of Los
Angeles, 745 F.3d 1249, 1257 (9th Cir. 2014). Here,
however, even Hunley has argued that “the Copyright Act is
not ambiguous,” because Hunley claims that Perfect 10 is
unambiguously wrong and that the legislative history
confirms it. If Hunley believes there is an irreconcilable
disjunct between Perfect 10 and some prior authority—
whether that is a prior decision of this court, a statute not
considered by the prior panel, or legislative history—the
proper procedure is to seek rehearing en banc.
3. Whether Perfect 10 is inconsistent with Aereo
Finally, Hunley argues that Perfect 10 has been
effectively overturned because it conflicts with the Supreme
Court’s decision in American Broadcasting Company v.
Aereo, 573 U.S. 431 (2014). In Aereo, ABC and other public
broadcasting companies, television producers, marketers,
and distributors (“the broadcasters”) sued Aereo, an
equipment provider that offered a subscription to stream
public broadcast television simultaneously over the internet.
Id. at 436. Subscribers visited Aereo’s website to select
shows from local programming. Id. Aereo dedicated a
specific antenna to each subscriber, and the server tuned the
26 HUNLEY V. INSTAGRAM, LLC
antenna to the selected over-the-air broadcast. Id. Aereo’s
transcoder translated the signals and transmitted them to the
subscriber over the internet. Id. Aereo saved the data “in a
subscriber-specific folder on Aereo's hard drive.” Id. At the
time of the suit, Aereo did not own any copyrights in the
broadcasts, nor did it possess “a license from the copyright
owners to perform those works publicly.” Id. The
subscriber received the streamed transmission “a mere few
seconds behind the over-the-air broadcast.” Id. at 437. The
broadcasters brought suit against Aereo, alleging that Aereo
infringed the broadcaster’s exclusive right “to perform the
copyrighted work publicly.” 17 U.S.C. § 106(4).
The infringement analysis required the Court to construe
the Transmit Clause. Id. § 101 (definition (2) of “publicly”)
(“to transmit or otherwise communicate a performance or
display of the work . . . by means of any device or process .
. . .”). The Court considered whether Aereo performed
publicly within the meaning of the Copyright Act. Aereo,
537 U.S. at 438. The Court first concluded that Aereo
“performed.” As amended in 1976, the Copyright Act
“clarifie[d] that to ‘perform’ an audiovisual work means ‘to
show its image in any sequence or to make the sounds
audible.’” Id. at 441 (quoting 17 U.S.C. § 101). The Court
held that “both the broadcaster and the viewer of a television
program ‘perform,’ because they both show the program’s
images and make audible the program’s sounds.” Id. The
Court concluded: “Aereo is not simply an equipment
provider. Rather, Aereo, and not just its subscribers,
‘perform[s]’ or ‘transmit[s].’” Id. (alteration in original).
The Court noted that “[i]n other cases involving different
kinds of service or technology providers, a user’s
involvement in the operation of the provider's equipment and
selection of the content transmitted may well bear on
HUNLEY V. INSTAGRAM, LLC 27
whether the provider performs within the meaning of the
Act.” Id. at 444.
Hunley proposes two inconsistencies between Perfect 10
and Aereo: First, Hunley claims that the performance right,
which was at issue in Aereo, “has equal value and weight as
the display right” at issue in Perfect 10; in fact, Hunley
argues that the two rights can be “easily [] interchanged.”
Hunley reasons that because the performance and display
rights are both “exclusive,” 17 U.S.C. § 106(4),(5),
Instagram must be liable because Aereo was liable. Second,
Hunley argues that “it is the practical, functional perspective
of the public viewer, and not hyper technicalities, that must
determine whether a particular mode of content or delivery
system is infringing or not.” See Aereo, 573 U.S. at 443–44.
We find both arguments unpersuasive.
(a). Differences between the performance and the
display right. The Copyright Act grants independent,
exclusive rights “to perform . . . [and] to display [a]
copyrighted work.” 17 U.S.C. § 106(4), (5). The Act’s
definition of “display” means “to show a copy” of the
underlying work. To “perform” means “to recite, render,
play, dance or act it . . . or . . . to show its images.” Compare
17 U.S.C. § 101 (definition of “display”) with id. (definition
of “perform”). Both the right to display and the right to
perform can be infringed by transmission: the Transmit
Clause expanded the definition of “perform[ing] or
display[ing] a work ‘publicly’” to include “transmi[ssion] or
other[] communicat[ion of] a performance or display of the
work . . . by means of any device or process.” Id. § 101
(definition of “To perform or display a work ‘publicly’”).
However, infringing the public display right requires an
underlying copy. By definition, displaying a work publicly
28 HUNLEY V. INSTAGRAM, LLC
requires that the infringer display a copy of the work, id.
§ 101 (definition of “display”); and transmission of a
display means that someone has transmitted a copy of the
work “to the public.” Id. (definition of “To perform or
display a work ‘publicly’”). However, to infringe the public
performance right, the infringer need not show or perform a
copy of the underlying work. Id. § 101 (definition of
“perform”).
This difference between these two rights are significant
in this case. Perfect 10 and Aereo deal with separate
provisions of the Copyright Act—Perfect 10 addressed the
public display right, and Aereo concerned the public
performance right. In Perfect 10, we analyzed what it meant
to publicly display a copy in the electronic context. See
Perfect 10, 508 F.3d at 1161. By contrast, in Aereo the
Court did not address what it means to transmit a copy,
because the public performance right has no such
requirement. See Aereo, 573 U.S. at 439–44. In other
words, regardless of what Aereo said about retransmission
of licensed works, Perfect 10 still forecloses liability to
Hunley because it answered a predicate question: whether
embedding constitutes “display” of a “copy.” Perfect 10,
508 F.3d at 1160. Aereo may have clarified who is liable for
retransmitting or providing equipment to facilitate access to
a display—but unless an underlying “copy” of the work is
being transmitted, there is no direct infringement of the
exclusive display right. Thus, Perfect 10 forecloses
Hunley’s claims, even in light of Aereo.
There is an additional reason we cannot find liability for
Instagram here. We held, prior to Aereo, that infringement
under the Copyright Act requires proof of volitional conduct,
the Copyright Act’s version of proximate cause. See Fox
Broad. Co., Inc. v. Dish Network LLC, 747 F.3d 1060, 1067
HUNLEY V. INSTAGRAM, LLC 29
(9th Cir. 2013); Kelly v. Arriba Soft Corp., 336 F.3d 811,
817 (9th Cir. 2003) (“To establish a claim of copyright
infringement by reproduction, the plaintiff must show . . .
copying by the defendant.”). And we are not alone, indeed,
“every circuit to address this issue has adopted some version
of . . . the volitional-conduct requirement.” BWP Media
USA, Inc. v. T&S Software Assocs., Inc., 852 F.3d 436, 440
(5th Cir. 2017) (citing cases). The Court in Aereo did not
address volitional conduct as such, although Justice Scalia
did so in his dissent. See Aereo, 573 U.S. at 453 (Scalia, J.,
dissenting). But the Court did distinguish between those
who engage in activities and may be said to “perform” and
those who engage in passive activities such as “merely
suppl[ying] equipment that allows others to do so.” Id. at
438–39. In any event, Perfect 10 was bound to apply our
volitional-conduct analysis. When we applied our
requirement that the infringer be the direct cause of the
infringement, we concluded that the entity providing access
to infringing content did not directly infringe, but the
websites who copied and displayed the content did. Perfect
10, 508 F.3d at 1160.
Post-Aereo, we have continued to require proof of
“causation [as] an element of a direct infringement claim.”
Giganews, 847 F.3d at 666. In such cases we have taken
account of Aereo and concluded that our volitional conduct
requirement is “consistent with the Aereo majority opinion,”
and thus remains “intact” in this circuit. Id. at 667; see Bell
v. Wilmott Storage Servs., LLC, 12 F.4th 1065, 1081–82 (9th
Cir. 2021); Oracle Am., Inc. v. Hewlett Packard Enter. Co.,
971 F.3d 1042, 1053 (9th Cir. 2020); VHT, Inc. v. Zillow
Grp., Inc., 918 F.3d 723, 731 (9th Cir. 2019). Our volitional
conduct requirement draws a distinction between direct and
secondary infringement that would likely foreclose direct
30 HUNLEY V. INSTAGRAM, LLC
liability for third-party embedders. And without direct
infringement, Hunley’s secondary liability theories all fail.
See Oracle Am., Inc., 971 F.3d at 1050.
(b). The significance of user perception. Hunley and
amici argue that viewer perception of a copyrighted image
on a third-party website is sufficient to establish direct
infringement. According to Hunley, because users perceive
the same image whether the third-party website duplicates
the photo on its own server or embeds the photo from
Instagram, both instances should constitute direct
infringement. Hunley points to the following passage from
Aereo:
Here the signals pursue their ordinary course
of travel through the universe until today's
“turn of the knob”—a click on a website—
activates machinery that intercepts and
reroutes them to Aereo's subscribers over the
Internet. But this difference means nothing to
the subscriber. It means nothing to the
broadcaster. We do not see how this single
difference, invisible to subscriber and
broadcaster alike, could transform a system
that is for all practical purposes a traditional
cable system into “a copy shop that provides
its patrons with a library card.”
Aereo, 573 U.S. at 444. Hunley argues that Aereo held that
“[w]hat happens behind the curtain is . . . irrelevant to the
consuming public, and so too should it be irrelevant in the
eyes of the law.”
We are reluctant to read too much into this passage. The
Court commented on user perception to point out the
HUNLEY V. INSTAGRAM, LLC 31
similarities between Aereo and traditional cable companies.
These similarities mattered because the 1976 Copyright
Amendments specifically targeted cable broadcasts. See
Aereo, 573 U.S. at 433. But the Court did not rely on user
perception alone to determine whether Aereo performed.
See id. The Court has not converted user perception into a
separate and independent rule of decision.
Furthermore, Aereo’s discussion of user perception is
consistent with our pre-Perfect 10 law regarding user
perception. In N.Y. Times Co. v. Tasini, authors who
provided articles to newspapers and magazines sued the
publishers when these articles were subsequently published
in online databases. 533 U.S. 483 (2001). The Court held
that the fact that “the Articles [were] presented to, and
perceptible by, the user of the Databases” was important to
“determining whether the Articles have been reproduced and
distributed ‘as part of’ . . . the collective works.” Id. at 499.
The Court’s statement in Tasini is unremarkable, however.
In any “display” covered by the Copyright Act, the work
must be “perceptible” to the user. See 17 U.S.C. § 101(“‘Copies’” are material objects . . . from which the work can
be perceived”). Moreover, the Tasini court declined to
resolve the different issue of public display. Id. at 498 n.8
(“[w]e do not reach an issue the Register of Copyrights has
argued vigorously. The Register maintains that the
Databases publicly ‘display’ the Articles. . .”). This is not
sufficient “intervening authority to cast doubt on this Court's
prior authority.” Lair, 697 F.3d at 1207 (citations omitted).
We were well aware of Tasini when we decided Perfect 10,
and we have continued to read Tasini to be consistent with
Perfect 10. See Perfect 10, 508 F.3d at 1162 (discussing
Tasini); see also ABS Ent., Inc. v. CBS Corp., 908 F.3d 405,
422 (9th Cir. 2018) (“Tasini does not say that a mere
32 HUNLEY V. INSTAGRAM, LLC
migration of a work into a new medium justifies an
independent copyright.”); Giganews, 847 F.3d at 669 (Tasini
“does not establish that Giganews or Livewire directly
violated Perfect 10’s distribution rights by selling access to
infringing images on Giganews’s servers”)
Finally, Perfect 10 crafted our Server Test out of the
Copyright Act’s fixation requirement—not the perceptibility
requirement. See Perfect 10, 508 F.3d at 1160 (“A
photographic image is a work that is ‘fixed in a tangible
medium of expression,’ for purposes of the Copyright Act,
when embodied (i.e., stored) in a computer's server (or hard
disk, or other storage device).”). Perfect 10 did not scratch
on a blank slate; it built on our prior caselaw interpreting the
fixation requirement. See id. (“The image stored in the
computer is the “copy” of the work for purposes of copyright
law.”). Our caselaw regarding computerized copyright
infringement relied on user perception in a limited
circumstance: to determine whether copies were “fixed”
under the Copyright Act. 17 U.S.C. § 101 (definition of
“fixed”); see MAI Sys. Corp., 991 F.2d at 517–18. Because
the public display right requires that an infringer “display a
copy,” user perception is relevant to whether a copy is
“fixed,” but not sufficient to establish direct infringement
absent the underlying display of a fixed copy. See generally
17 U.S.C. §101.
Considered together, our cases conclude that user
perception is relevant to the fixation requirement—as
mandated by the Copyright Act—but not determinative as to
whether the display right has been infringed. Thus, the user
perception analysis is not “clearly irreconcilable” with
intervening authority. See Gammie, 335 F.3d at 893.
HUNLEY V. INSTAGRAM, LLC 33
C. Policy Concerns
Hunley, Instagram, and their amici have peppered us
with policy reasons to uphold or overturn the Server Test.
Their concerns are serious and well argued. Hunley argues
that the Server Test allows embedders to circumvent the
rights of copyright holders. Amici for Hunley argue that the
Server Test is a bad policy judgment because it destroys the
licensing market for photographers. On the other hand,
amici for Instagram argue that embedding is a necessary part
of the open internet that promotes innovation. As citizens
and internet users, we too are concerned with the various
tensions in the law and the implications of our decisions, but
we are not the policymakers.
If Hunley disagrees with our legal interpretation—either
because our reading of Perfect 10 is wrong or because
Perfect 10 itself was wrongly decided—Hunley can petition
for en banc review to correct our mistakes. But we have no
right “to judge the validity of those [] claims or to foresee
the path of future technological development.” Aereo, 573
U.S. at 463 (Scalia, J., dissenting). Most obviously, Hunley
can seek further review in the Supreme Court or legislative
clarification in Congress.
Finally, we note that the Server Test applies only to
embedding in its current technological format, which
involves a single host server storing and transmitting an
image, with an embedding website that directs the browser
to retrieve and display that same underlying image from the
host server. Perfect 10 does not foreclose other avenues to
relief for future technologies that configure retransmission
in a new way. We cannot foreclose the possibility that some
future panel may conclude that there are ways to display a
copy other than to store it on a server. But it is not our role
34 HUNLEY V. INSTAGRAM, LLC
to craft a policy solution and rewrite the law to our tastes.
We can only apply the law as it currently exists.
D. Application of the Server Test to Hunley
Having rejected Hunley’s legal and policy challenges to
Perfect 10, we now apply the Server Test to the facts of this
case.
By posting photographs to her public Instagram profile,
Hunley stored a copy of those images on Instagram’s
servers. By displaying Hunley’s images, Instagram did not
directly infringe Hunley’s exclusive display right because
Instagram had a nonexclusive sublicense to display these
photos.
To assert secondary liability claims against Instagram,
Hunley must make the threshold showing “that there has
been direct infringement by third parties.” Oracle Am., Inc.,
971 F.3d at 1050. Time and BuzzFeed wrote the HTML
instructions that caused browsers to show Hunley and
Brauer’s photographs on Time and BuzzFeed websites.
However, under Perfect 10 these instructions did not
constitute “display [of] a copy.” See Perfect 10, 508 F.3d at1160–61. Rather, Instagram displayed a copy of the
copyrighted works Hunley posted on its platform, and the
web browser formatted and displayed the images alongside
additional content from Time and BuzzFeed. Because
BuzzFeed and Time embedded—but did not store—the
underlying copyrighted photographs, they are not guilty of
direct infringement. See Perfect 10, 508 F.3d at 1160–61.
Without direct infringement, Hunley cannot prevail on any
theory of secondary liability. See Giganews, 847 F.3d at
671. As a result, Instagram is not secondarily liable (under
any theory) for the resulting display. The district court did
not err in dismissing this case on the basis of the Server Test.
HUNLEY V. INSTAGRAM, LLC 35
IV. CONCLUSION
For the foregoing reasons, we find no error in the
judgment of the district court.
AFFIRMED.