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Instagram Just Threw Users of Its Embedding API Under the Bus (arstechnica.com) 68

An anonymous reader quotes a report from Ars Technica: Instagram does not provide users of its embedding API a copyright license to display embedded images on other websites, the company said in a Thursday email to Ars Technica. The announcement could come as an unwelcome surprise to users who believed that embedding images, rather than hosting them directly, provides insulation against copyright claims. "While our terms allow us to grant a sub-license, we do not grant one for our embeds API," a Facebook company spokesperson told Ars in a Thursday email. "Our platform policies require third parties to have the necessary rights from applicable rights holders. This includes ensuring they have a license to share this content, if a license is required by law."

In plain English, before you embed someone's Instagram post on your website, you may need to ask the poster for a separate license to the images in the post. If you don't, you could be subject to a copyright lawsuit. Professional photographers are likely to cheer the decision, since it will strengthen their hand in negotiations with publishers. But it could also significantly change the culture of the Web. Until now, people have generally felt free to embed Instagram posts on their own sites without worrying about copyright concerns. That might be about to change.
Instagram's announcement follows a recent court ruling where photographer Elliot McGucken sued Newsweek for copyright infringement for embedding his post on their site without permission. "Newsweek countered that it didn't need McGucken's permission because it could get rights indirectly via Instagram," reports Ars Technica. "Instagram's terms of service require anyone uploading photos to provide a copyright license to Instagram -- including the right to sublicense the same rights to other users. Newsweek argued that that license extends to users of Instagram's embedding technology, like Newsweek."

"But in a surprise ruling (PDF) on Monday, Judge Katherine Failla refused to dismiss McGucken's lawsuit at a preliminary stage," the report adds. "She held that there wasn't enough evidence in the record to decide whether Instagram's terms of service provided a copyright license for embedded photos."

The report goes on to note that courts have previously "ruled against plaintiffs in embedding cases based on the 'server test,' which holds that liability goes to whomever runs the server that actually delivers infringing content to the user -- in this case, Instagram." It adds: "Instagram's decision to throw users of its embedding API under the bus makes the server test crucial for cases like this."
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Instagram Just Threw Users of Its Embedding API Under the Bus

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  • Instagram chose the only legal strategy that could end making them entirely responsible for infringing the copyright of something they actually had a license too, and could have re-licensed. They're pulling the carpet out from under their users, and leaving themselves holding the bag.

  • by Pfhorrest ( 545131 ) on Thursday June 04, 2020 @11:06PM (#60147646) Homepage Journal

    Instagram's lawyers can say that, but that's now how copyright law actually works.

    If I embed an image from an Instagram server on my web page, I am directing the viewer's browser to request the image from Instagram. If Instagram then transmits the image when requested, all that matters is whether they are allowed to distribute it.

    Linking is not distribution. We already went over this in the 2600 case, decades ago.

    • by phantomfive ( 622387 ) on Thursday June 04, 2020 @11:24PM (#60147674) Journal

      Linking is not distribution. We already went over this in the 2600 case, decades ago.

      Embedding is not linking, though. So it's possible the court could decide that the embedding in this case is illegal. The court could also decide that it is illegal in some cases, but not others.

      • by jaa101 ( 627731 )

        Surely all that matters is that the embedding web site is at no stage making a copy of the embedded content. So there’s no way for there to be a copyright issue for the embedding web site. If they had a contract with someone then there might be terms restricting embedding, but that’s not a copyright issue and the article doesn’t suggest that’s what’s going on.

        • That's the kind of legal argument that programmers tend to make: it seems to follow the rules, attempting to win on a technicality, but it doesn't work. The law doesn't talk about hosting images, so the judge doesn't have to follow your technicality.
          • by gavron ( 1300111 )

            That's the kind of legal argument that programmers tend to make: it seems to follow the rules, attempting to win on a technicality, but it doesn't work. The law doesn't talk about hosting images, so the judge doesn't have to follow your technicality.

            That's the kind of argument people who don't understand the law tend to make.
            Judges make decisions of law, and the follow the law, not "technicalities" (whatever you think those are).

            Quote your legal sources, Sir. The OP did.

            E

            • Quote your legal sources, Sir. The OP did.

              ? You're posting in the wrong thread, no one quoted any legal sources.

              Judges make decisions of law, and the follow the law

              This isn't even grammatically correct, are you drunk or high? Your post is either wrong or makes no sense, I can't tell which.

            • by sjames ( 1099 )

              Actually, the problem comes in when judges don't understand the technology they are making a ruling on. An embedded image certainly looks like a link to a programmer, it just has the additional attribute that the user doesn't have to clock first.

              The img tag contains a URL in the same format a link would expect. The result is a browser sending a request to the other server and then that server gets to decide if it wants to send the image in response or not.

              Imagine a world where judges found toddlers civilly

              • > An embedded image certainly looks like a link to a programmer, it just has the additional attribute that the user doesn't have to clock first.

                It looks like that to the programmer, and only to the programmer. To the user it is part of the page. The Slashdot logo at the top of this page is part of the page. Is it hosted on the same server as the HTML? Probably not, actually, but anyone looking at the page normally can't even tell.

                Importantly, to the flow of money it's part of the page. If I "find" all o

                • by flink ( 18449 )

                  If you don't want your work appearing on other random servers, then don't make it available freely to anyone that requests it. Only deliver the content if the Referer header matches your whitelist. Or you can check if if the request has a previous cookie from your domain, or require users to authenticate in some manner, or any number of technical solutions to this completely solved problem. If you don't like that the Instagram platform allows your work to be embedded by anyone, then don't use it.

                  Linking

                  • > any number of technical solutions

                    You can lock the door to your house as opposed to leaving the front door unlocked while you're at home. That's an entirely different topic of discussion than whether people should walk into your house and get themselves glass of milk.

                    As a matter of fact I helped write the most commonly used anti-hotlinking referer check code. Unfortunately some large sites copy-pasted our code instead of linking to our page, so the most-used version contains an error that I quickly fi

                    • by sjames ( 1099 )

                      It's a little different though if you posted instructions on your bike, including the combination to the lock (that is, published an API for using your bike).

                      If you toss your change into the "take a penny, leave a penny' tray, you don't get to complain if someone takes a penny.

                      The web was designed for linking,. including embedded linking. It's not a secret. Embedded linking doesn't require a crazy clever hack, it's designed in to the spec.

                    • > (that is, published an API for using your bike)

                      It would be, but that would be exceedingly rare. We're not talking about a case where the owner published an API. Instagram published an API for content they do not own.

                    • Btw

                      > Embedded linking doesn't require a crazy clever hack

                      Getting on your bike and riding away with it doesn't require a crazy clever hack either. It's using the bike exactly the way the bike was designed. It's still at the very least quite rude, if not criminal.

                    • by sjames ( 1099 )

                      You missed the part about publishing the combination to your bike lock ON YOUR BIKE in a set of instructions for using your bike. In other words, an open invitation.

                      Is it actually rude to accept an offer that was freely given?

                    • by sjames ( 1099 )

                      However rare it might be Instagram did, in fact, publish such an API. And the content owners did freely and of their own volition grant Instagram a world-wide redistribution right to their content. If they didn't want that, they shouldn't have posted to Instagram.

                      You can't put something on the curb on trash day and then prosecute if someone takes it.

                    • I'm sorry, where did the photographer put a set.of instructions?

                      Oh, you mean if *somebody else* who doesn't own your bike writes an article about how to steal bikes. Well yeah that makes it totally okay.

                    • by sjames ( 1099 )

                      The photographer freely granted Instagram world-wide redistribution rights. It's part of signing up for Instagram.

                      The photographer then put photos on somebody else's web server (Instagram's) with the expectation that it would provide a copy to all comers on request. What more do you want, an engraved invitation delivered by an off duty Mountie?

            • by hjf ( 703092 )

              Judges follow the SPIRIT of the law, and not the literal text of the law. Judges ultimately have the last word in the interpretation of an ambiguous text. This is obvious and comes from the principle that "laws can't contemplate every possible scenario".

              Relevant family guy moment: https://www.youtube.com/watch?... [youtube.com]

              That sort of bullshit doesn't fly in real life, guys.

              • by gavron ( 1300111 )

                > Judges follow the SPIRIT of the law, and not the literal text of the law.

                You can make up whatever you like, but no.
                - the Jury is the "arbiter of fact" - did this happen and if so how
                - the Judge/Court is the "arbiter of law" - how does the law apply here

                If the plain reading of the law is clear (this is up to the legislative branch) the Judge/Court applies it.
                If it's not plain the Judge/Court tries to figure out what the legislature intended.

                This isn't "SPIRIT" of the law. It's legislative intent.

                But he

                • Well, I know that we're talking about the USofA here, but it varies according to juristictions around the world, and even in the land of the free, depending on the county or state you're in, and also in federal or supreme court. "judge-made" law is a thing...

                  Now, whether or not it SHOULD be like that is another matter.

                  • by hjf ( 703092 )

                    "judge-made" law is very much a thing in the US since the US uses the Common Law system, as opposed to most of the western countries, which use Civil Law.

          • by dfghjk ( 711126 ) on Friday June 05, 2020 @04:17AM (#60148200)

            "The law doesn't talk about hosting images, so the judge doesn't have to follow your technicality."

            Precedent does:

            'The report goes on to note that courts have previously "ruled against plaintiffs in embedding cases based on the 'server test,' which holds that liability goes to whomever runs the server that actually delivers infringing content to the user -- in this case, Instagram."'

        • by Rhipf ( 525263 )

          Actually, if it is truly being embedded then a copy of the embedded content is being made.
          The main difference between embedding and linking is that when you embed something you are creating a copy within the document. The embedded content does not change when the source material is changed. If the content changes on your web site when the source material changes then you aren't embedding the content you are linking the content.
          I have no idea which of these scenarios apply to Instagram though (I don't use In

    • by Gavagai80 ( 1275204 ) on Thursday June 04, 2020 @11:42PM (#60147708) Homepage

      Courts tend to use a lot more common sense than internet lawyers think. If the owner of a web page took a purposeful action to cause the display of a copyrighted image without permission in such a way that it appears to the casual user to be part of said web page, then that owner can be held liable. The technical details of who actually serves the image aren't likely to matter unless they can cast doubt on the intent of the web page owner.

      • by flink ( 18449 )

        It's a copyright case. Did the embedding page make a copy? No. The page delivered instructions for where to obtain a copy. The hosting server made a copy. It's on the owner of the hosting server to ensure they have license to distribute everything they serve.

        This is settled case law. This is why every single online TOS that allows for user content includes language that grants the host an unlimited copyright license to distribute what you upload. The fact that Instagram said that their API does not g

    • Linking is not distribution.

      And embedding is not linking. There's a reason none of these cases have hinged on "linking" to another site, and when you embed an Instagram your website directly shows the image.

      The courts rightfully don't care who owns the server that sends you infringing bits unless that same server is also sending you the primary content the viewer is viewing.

      • by dfghjk ( 711126 )

        "unless that same server is also sending you the primary content the viewer is viewing"

        How is this "primary" content defined?

        • Easy, you don't visit one domain owned by one company for the express purpose of maybe getting content from another.

          If you're on Slashdot, reading a post on slashdot by a slashdot editor with comments by slashdot users, me embedding an Instagram image here would not be considered Slashdot's content.

  • Maybe a few people will realize how little they are valued. The rest of the fools deserve to suffer for patronizing a parasitic corporation.

  • All these rules and regulations for privacy, copyright and so on might be well intended, and as such most I support. But they will block any startups and new initiatives to the social network environment from the world that obeys these laws. The new platforms and initiatives will never be able to get the virus like spreading that Facebook and others used and can't ignore the copyright abuse that the existing platforms did for a long time. So what is left and only growing on internet are the existing giants
    • Big Tech got its start by overthrowing the existing power structure. Of course they're going to put every roadblock they can think of in the way of today's startups. They don't want to be overthrown!
  • This seems like a brilliant strategy for Instagram to reduce adoption of its platform.

    I certainly won't "share" anything on a platform that leaves me holding the liability bag.

    • This seems like a brilliant strategy for Instagram to reduce adoption of its platform.

      Instagram doesn't benefit much much from ever shitty news outlet linking to its images without actually sending clicks their way. They are not an image hosting platform for 3rd party websites.

      • by Xenx ( 2211586 ) on Friday June 05, 2020 @03:05AM (#60148060)
        If Instagram doesn't benefit from it, why do they provide the APIs to facilitate it? If they didn't want it done, they wouldn't provide the tools to do it. Plus, for them, it's nearly free advertisement.
        • by PPH ( 736903 )

          From the summary, it sounds like their decision was based upon the failure of the related case in court*. The intent of their API may have been to facilitate exactly what may get disallowed in this case. So rather than wait to see if they will become a party to this or other lawsuits, they are pulling the API. Against their short term financial interests.

          *Actually, the failure to get that third party lawsuit dismissed. I'm not sure the case has been decided yet.

        • by hjf ( 703092 )

          Because it's very possible that you would want to host your own instagram images in your own personal website. Which would be completely legal for you to do.

          • by Xenx ( 2211586 )

            Because it's very possible that you would want to host your own instagram images in your own personal website.

            That isn't what it's there for though, or at least not only what it's there for. It's very clear in their documentation that it's meant for sites to be able to embed the content of others.

            Which would be completely legal for you to do.

            In most cases, using embedded/hotlinked images is perfectly legal. IANAL, but from what I see it's the predominate ruling but not universal. As long as the server hosting the image has a license for the content, which FB/Instagram does if it's on their site, then hotlinking/embedding the image from them is usually legal.

        • If Instagram doesn't benefit from it, why do they provide the APIs to facilitate it? If they didn't want it done, they wouldn't provide the tools to do it. Plus, for them, it's nearly free advertisement.

          Maybe I wasn't clear. The point was that Instagram sharing is about access first and foremost to a person or a newsworthy event, the latter of which are quite rare on Instagram. The sharing API has little to do with benefit to Instagram and everything to do with access to users, which is their primary bread and butter. If anything users would be *more* likely to use the service now.

          The API is something secondary and doesn't benefit Instagram much. The API exists due to its parent company's own social servic

          • by Xenx ( 2211586 )

            I don't know why you left out that last word, but it seems to have changed your entire interpretation of my post.

            It didn't change my interpretation of your post at all. I didn't leave it out because I ignored it. I just felt it was implied as I was responding to your comment.

            The sharing API has little to do with benefit to Instagram and everything to do with access to users

            Your thinking is flawed if you don't believe user satisfaction, or the advertising the embeds provide, isn't of tangible benefit to them.

            The point was that Instagram sharing is about access first and foremost to a person or a newsworthy event

            If you look at the developer documents for embedding with FB/Instagram it's clear it's not meant for just the individual to embed their own content. It's meant for websites to be able to embed other people's wor

      • Of course they benefit from it. They get data about where, when and with what the image was viewed, and they get to drop cookies all over your device. The image itself isn't the important part to them, it's the huge amount of data they can get from it.
        • I will bet you my left testicle that there isn't a single website in the world which drops an Instagram cookie on your device that doesn't drop a Facebook cookie for completely unrelated reasons. The same point is said about data. They already get that from the social links provided by literally every news site in the world. So back to my point, there don't benefit much.

          Incidentally why is it that you also left off that last word?

  • Well I guess Instagram was stuck in a trolley problem. If they made a different decision they'd be throwing users under the bus.
    Alternate headline: Instagram sides with users in copyright claim. But we can't make a headline sound positive can we.

    • by Xenx ( 2211586 )
      It doesn't actually really matter what Instagram says here. Hotlinking/inline linking/etc isn't usually considered infringing because the data is still hosted on the originating server. At most, Instagram might have a case against sites that use their API if there are terms preventing this activity.
      • by Xenx ( 2211586 )
        To clarify, if instagram said they were providing a sub-license THAT would matter as it would be the end of it. What they say aside from that is what doesn't matter.
  • As a professional photographer i can only applaud for this.

    Allthough i create distinguishing images, i depend more on the licensing of images.

  • by wiredog ( 43288 ) on Friday June 05, 2020 @06:55AM (#60148400) Journal

    and the Creative Commons "With Attribution" license. Avoids these sort of misunderstandings. Yes, I have to pay for Flickr, but it's worth it.

  • You can post a link to an Instagram image on your Instagram account. You can't link to some other website. What you should do, is when Newsweek links to your photo, replace the photo with a goatse, kiddie pron. Let that pop up in Newsweek. The hyperlink equivalent of putting dog poop in a box on your porch, for the porch pirates to steal.

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