In one fell swoop, Facebook may have changed its mind about how the online news media will operate from here on out. Undermining a now age-old assumption, Facebook told Ars Technica on Thursday that embedding from Instagram may not shield news organizations from freely cross-posting on their sites. A spokesperson said:
While our terms allow us to grant a sub-license, we do not grant one for our embeds API. Our platform policies require third parties to have the necessary rights from applicable rights holders.
The dry statement could mean upheaval for online publishing, implying that a news organization (or anyone running a for-profit site) would have to obtain a license for an Instagram post directly from the poster before they can embed it. Some will worry that it bodes a future in which publications retroactively strike every Instagram embed from its archives in order to avoid lawsuits.
On one hand, it’s good news for professional photographers and artists who would otherwise be paid for the use of their work embedded on a personal website. Photographers like the ones who separately sued Mashable and Newsweek for embedding their Instagram posts, both after they explicitly declined to license the images to the respective publications. On the other hand, this might be the last gasp for Instagram commentary, the bread of the news, the spice of the tea blogs.
“It strikes me more as a policy decision, in that Instagram may have worried that people would post fewer creative things if they believed doing so would strip it of copyright protection,” attorney Nicholas O’Donnell, who specializes in fine art copyright law, told Gizmodo. O’Donnell speculated that the statement is likely “a reaction” to a New York federal judge’s ruling in April that sided with Mashable. The judge concluded that Mashable was allowed to embed a professional photographer’s Instagram post “pursuant to a valid sublicense from Instagram”—interpreting Instagram’s terms to mean that it grants a blanket sublicense through its embed API.
Instagram seems to be leaning more toward catering to potential plaintiffs; in an email to Gizmodo this morning, Facebook said that it is planning to help users gain more leverage over Instagram embeds.
If Instagram wanted to take a stance (and Facebook is not known for stances), it could merely tweak a sentence in its extensive platform policy, which seems intentionally loopy, so much so that a second New York federal judge attempted to straighten it out this week. In this case, a photographer is suing Newsweek for running a story about, and embedding, their image of an ephemeral lake in Death Valley—quite possibly a once-in-a-lifetime shot. The court found that Instagram, in no uncertain terms, has the right to sublicense the publicly posted content, and that Instagram expressly states that its API is “to help broadcasters…get the rights to digital media”—but there is no evidence of any explicit sublicense agreement between Instagram and Newsweek.
Who, then, gets a sublicense from Instagram, and how? When asked by Gizmodo, Facebook pointed to three subsections in its platform policy, emphasizing that you have to take it up with the original poster if you want to repost—in other words, it seems that Instagram isn’t in charge of sublicensing after all:
Licensed Uses and Restrictions: The Instagram Platform is owned by Instagram and is licensed to you on a worldwide (except as limited below), non-exclusive, non-sublicenseable basis in accordance with these terms. Your license to the Instagram Platform continues until it is terminated by either party. Please note that User Content is owned by users and not by Instagram. All rights not expressly granted to you are reserved by Instagram.
You represent and warrant that you own or have secured all rights necessary to display, distribute and deliver all content in your app or website. To the extent your users are able to share content from your app or website on or through Instagram, you represent and warrant that you own or have secured all necessary rights for them to do so in accordance with Instagram’s available functionality.
You represent and warrant that you satisfy all licensing, reporting, and payout obligations to third parties in connection with your app or website.
As Ars Technica notes, Newsweek might be able to shift the onus back to Instagram if it successfully argues that Instagram is the content publisher because the embed API simply pulls up images that are hosted on Instagram’s servers. The logic, known as the “server test,” was established in the Ninth Circuit in 2007 when a pornography magazine sued Google for framing and hyperlinking its images in a search.
But the Newsweek case is being tried in New York, where a court previously rejected the server test, ruling that embedding a tweet containing a copyrighted image can be infringing.
O’Donnell argues that Instagram’s revised interpretation of its terms might disqualify the server test altogether: Instagram could divorce itself from liability if it scraps the impression that it allowed third-party sharing in the first place. “It strengthens Instagram’s position,” he said. “Instagram appears to be essentially saying that they’re posting the photos in the way that the Instagram user wants. If someone comes along and displays it differently than that, then they’re the one breaking the rules.”
A court may look instead at how the image is displayed, rather than how it’s published. “Inline linking does not result in publication, but it absolutely results in public display,” Jon Garon, law professor at Nova Southeastern University, told Gizmodo. Garon pointed to a 2014 case in which the Supreme Court rejected the server test, ruling that a livestreaming platform Aereo infringed on copyright by broadcasting cable TV programs. “Looking at public reproduction separately from public display should create a situation in which the server test is not a defensive shield against copyright claims. That doesn’t mean that it’s copyright infringement, it just means that there’s no get-out-of-jail-free card.”
He sees a bright red line in the Newsweek case: a commercial publisher with a set market for licensing commercial photographs used a photograph for free in the way it would be used commercially. “In the fair use test, Newsweek has lost on all four prongs.”
Will blogs have to go back and scrub their archives? Garon conceded that there will probably be an uptick in copyright trolling, yes. But, he predicted, the “vast majority” of reposting on social media will continue to fall under fair use.
The more ominous element of this story is that an offhand comment from Facebook is a story. Facebook doesn’t want to govern, but it makes the laws.