Case 3:21-cv-03778-CRB Document 29 Filed 10/19/21 Page 1 of 38
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`CERA LLP
`Solomon B. Cera (Bar No. 099467)
`Thomas C. Bright (Bar No. 169713)
`Pamela A. Markert (Bar No. 203780)
`595 Market Street, Suite 1350
`San Francisco, CA 94105
`Telephone: (415) 777-2230
`Email: scera@cerallp.com
`Email: tbright@cerallp.com
`Email: pmarkert@cerallp.com
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`LAW OFFICES OF TODD M. FRIEDMAN, P.C.
`Todd Friedman (Bar No. 216752)
`Adrian R. Bacon (Bar No. 280332)
`21550 Oxnard Street, Suite 780
`Woodland Hills, CA 91367
`Telephone: (877) 206-4741
`Email: tfriedman@toddflaw.com
`Email: abacon@toddflaw.com
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`Attorneys for Plaintiffs and the Proposed Class
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`DUNCAN FIRM, P.A.
`James H. Bartolomei III (Bar No. 301678)
`809 W. 3rd Street
`Little Rock, AR 72201
`Telephone: (501) 228-7600
`Email: james@duncanfirm.com
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`HOBEN LAW
`Bryan D. Hoben (admitted pro hac pendingvice)
`1112 Main Street
`Peekskill, NY 10566
`Telephone: (347) 855-4008
`Email: bryan@hobenlaw.com
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`Plaintiffs,
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`ALEXIS HUNLEY and MATTHEW SCOTT
`BRAUER, Individually and On Behalf of All
`Others Similarly Situated,
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`V.
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`INSTAGRAM, LLC,
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`Defendant.
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`Case No. No. 3:21-cv-03778-CRB
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`CLASS ACTION
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`FIRST AMENDED COMPLAINT FOR DAMAGES
`BASED ON COPYRIGHT INFRINGEMENT
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`JURY TRIAL DEMANDED
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`FIRST AMENDED CLASS ACTION COMPLAINT
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`FOR DAMAGES BASED ON COPYRIGHT INFRINGEMENT
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`CLASS ACTION COMPLAINT FOR DAMAGES BASED ON COPYRIGHT INFRINGEMENT
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`CASE NO. 3:21-CV-03778-CRB
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`Case 3:21-cv-03778-CRB Document 29 Filed 10/19/21 Page 2 of 38
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`Plaintiffs Alexis Hunley and Matthew Scott Brauer, on behalf of themselves and all others
`similarly situated, for their complaint against Defendant Instagram, LLC, allege upon personal
`knowledge as to their own conduct, and on information and belief based on the investigation of
`plaintiffs’ counsel, as to all other conducted alleged herein, as follows.
`I.
`INTRODUCTION
`This case seeks to address whether Instagram, LLC (“Instagram”), the world’s largest
`photo sharing application with more than 50 billion photos uploaded by over one billion
`Instagram users since 2012, is liable for secondary copyright infringement of third-party website
`publishers who violated Instagram users' exclusive display rights under the Copyright Act.
`1.
`Plaintiffs allege that Instagram created a scheme Instagram, LLC (“Instagram”) is
`the world’s largest photo sharing application with more than 50 billion photos uploaded by over
`one billion Instagram users since 2012. This case is about Instagram’s scheme to generate
`substantial revenue for its parent, Facebook, Inc., by encouraging, inducing, and facilitating third
`parties to commit widespread copyright infringement. This scheme was accomplished by using
`Instagram’s “embedding” tool to display copyrighted works of Instagram users on third-party
`publisher websites, thereby vastly extending Instagram’s reach across the Internet, but without
`appropriately compensating the copyright holders or granting third-party website publishers
`authorization to display Plaintiff’s works.
`1.2.
`Instagram will seek to finally dismiss this case based on its reliance on its Terms
`of Use for Instagram Users, and point to the “Server Test,” a legal doctrine created in the Perfect
`10 Ninth Circuit case from 2007, which is not mentioned or found anywhere in any version of
`Instagram’s Terms of Use or Platform Policy for “embedding” copyrighted content. In other
`words, the application of the Sever Test is not simply a legal issue that Plaintiffs maintain is no
`longer applicable here, but is a factual issue in dispute based on the evidentiary record found in
`this case at this juncture and based on the Copyright Act being technology agnostic when it
`comes to the display right.
`2.3.
` Generally, “embedding” means the process of copying the unique hypertext
`markup language (“HTML”) code (letters, numbers and symbols, etc.) assigned to the location of
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`FIRST AMENDED CLASS ACTION COMPLAINT
`CASE NO. 3:21-CV-03778-CRB
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`FOR DAMAGES BASED ON COPYRIGHT INFRINGEMENT
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`Case 3:21-cv-03778-CRB Document 29 Filed 10/19/21 Page 3 of 38
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`digital copy of the photo or video (also made up of code, in files known as jpegs for photos or
`mpegs for videos found on Instagram) each photo or video published to the Internet, and the
`insertion of that code into a target webpage or social media post so that photo or video appears
`within the target post. Within the Instagram environment, this means that third party website
`publishers (such as BuzzFeed.com and Time.com)parties can copy the HTML code of an
`Instagram user’s post and paste it into the third party’s website, causing the photo or video posted
`to that Instagram user’s account to be simultaneously displayed on that third party website.
`Simply put, embedding is code interfacing with another form of code to cause a display of a
`photo or video to occur in two or more places at the same time (e.g., Instagram and
`BuzzFeed.com and/or Time.com).
`3.4.
`Plaintiffs allege that when a third party embeds a copyrighted photo or video from
`an Instagram user’s Instagram account to that third-party’s website without a license, permission,
`or valid legal defense from the copyright owner, or from Instagram, this constitutes an
`infringement of the copyright owner’s exclusive display right under the Copyright Act of 1976,
`17 U.S.C. §101 et seq., and therefore violates the law.
`4.5. Creators of photos and videos generally register their works with the U.S.
`Copyright Office for the primary purpose of licensing those works because each such registered
`video or photo has value. Plaintiffs allege that Instagram, through the direction and control of
`Facebook, created and encouraged the use of Instagram’s embedding tool to execute a scheme to
`expand and grow Instagram’s presence on third party websites to obtain a direct financial benefit
`derived from increased traffic, impressions, clicks and views monetized through advertising
`revenue on Instagram. The effect of this scheme has been the usurpation of the value of the
`copyrighted works, as the practice of embedding posts from Instagram has vitiated and diluted the
`market for licensing fees. By encouraging third party online publishers such as BuzzFeed.com,
`Time.com, Mashable.com, and others to use the embed tool to display copyrighted works without
`a license or permission from the copyright owners or from Instagram, Instagram is secondarily
`liable for each instance of those online publishers infringing a copyright owner’s display right
`caused by the unauthorized embedding of the respective photo from the user’s Instagram post.
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`FIRST AMENDED CLASS ACTION COMPLAINT
`FOR DAMAGES BASED ON COPYRIGHT INFRINGEMENT
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`CASE NO. 3:21-CV-03778-CRB
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`Case 3:21-cv-03778-CRB Document 29 Filed 10/19/21 Page 4 of 38
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`5.6.
`From on or about July 2013 until June 2020, Instagram knew or recklessly
`disregarded that no third party ever obtained a license or permission from Instagram to embed a
`copyrighted photo or video. Instagram also knew or recklessly disregarded that no third party ever
`obtained a license or permission from the copyright owner each time the embed tool was used to
`display a copyrighted work. Instagram also regularly and systematically handled, controlled,
`made reference to, and touched valuable copyrighted works with the intent and knowledge that
`third party online publishers were embedding those works without ever obtaining a license from
`the copyright owner, which in turn generated more traffic, more clicks, more likes, more shares,
`and other revenue-generating conduct for Instagram born out of the infringing activity of third
`parties.
`6.7.
`Instagram misled the public to believe that anyone was free to get on Instagram
`and embed copyrighted works from any Instagram account, like eating for free at a buffet table of
`photos, by virtue of simply using the Instagram embedding tool. Instagram, by acts of
`commission or omission, also misled third parties to believe that they did not need to obtain a
`license or permission from the copyright owner to embed those works. This dramatically changed
`in June 2020 when Instagram publicly admitted via a Facebook spokesperson that third parties in
`fact needed to secure a license or permission from the copyright holders to embed copyrighted
`works. See https://arstechnica.com/tech-policy/2020/06/instagram-just-threw-users-of-its-
`embedding-api-under-the-bus/.
`7.8. By this admission, Instagram has been caught red-handed in its scheme to usurp
`the value from copyrighted works for its own benefit in contradiction of its 2012 promise not to
`sell and monetize copyright owner’s photos and videos to third parties. Instead, Instagram
`actively and directly encouraged, solicited, induced, facilitated, and handled copyrighted works in
`its efforts to cause third party “embedders” to use the embed tool which, in turn, caused
`copyrighted works to be displayed, republished, publicly performed and distributed, without
`compensation, and in direct and indirect violation of the Copyright Act.
`8.9. To make matters even more problematic for copyright owners who published their
`photos and videos on Instagram, Instagram did not provide any tool, device or meaningful way
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`FIRST AMENDED CLASS ACTION COMPLAINT
`FOR DAMAGES BASED ON COPYRIGHT INFRINGEMENT
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`CASE NO. 3:21-CV-03778-CRB
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`Case 3:21-cv-03778-CRB Document 29 Filed 10/19/21 Page 5 of 38
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`for copyright owners to control or track third party embeds of their Instagram posts, thereby
`depriving copyright owners of the ability to discover alleged infringements. Meanwhile,
`Instagram retained for itself the ability to track embeds of Instagram user content across the
`Internet. It not only shopped certain user content to online publishers for embedding, but it also
`retained for itself the technological means and ability to track copyrighted works embedded on
`third party websites – all the while retaining 100% of the benefit and/or revenue from the
`infringing activity of third-party embedders – of which Instagram had actual and/or constructive
`knowledge.
`9.10. From 2013 to 2021, Plaintiffs and members of the Class who owned copyrighted
`works uploaded their intellectual property in the form of photo and videos to Instagram with the
`expectation and trust that Instagram (and its parent Facebook) would honor, protect and respect
`their copyrighted works. Therefore, Instagram’s use of the embed tool and scheme violated each
`user’s exclusive display rights under the law by its scheme. This scheme utilized the embedding
`tool to convert Plaintiffs and members of the Class’s copyrighted works to Instagram’s benefit.
`Instagram misled by causing Plaintiff and members of the Class to believe Instagram would
`protect and respect copyright owners’ works based on Instagram’s terms of use, the contract that
`allegedly binds users to Instagram. Instead, Instagram denied copyright owners any meaningful
`opportunity or means to discover and prevent public display of their works that infringed their
`copyrights through the embed tool. Plaintiffs and members of the Class are thus victims of
`Instagram’s embedding scheme. No tool exists for copyright owners to police the extensive
`infringement of their copyrighted works. Instagram knowingly exploited these limitations to
`maximize its (and its parent Facebook’s) insatiable drive for user volume and the resulting
`advertising revenue. The more Instagram could induce and encourage third parties to embed
`copyrighted works from Instagram, the more revenue Instagram generated from traffic and
`advertising revenue.
`10.11. Plaintiffs and the members of the Class are victims of a scheme that denies the
`copyright owner the right to protect their copyrighted works when uploaded to Instagram. In other
`words, Instagram knowingly deprived the copyright owner of any means, device or tool to protect
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`FIRST AMENDED CLASS ACTION COMPLAINT
`CASE NO. 3:21-CV-03778-CRB
`FOR DAMAGES BASED ON COPYRIGHT INFRINGEMENT
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`Case 3:21-cv-03778-CRB Document 29 Filed 10/19/21 Page 6 of 38
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`their copyrighted works. This action seeks to redress Instagram’s culpable conduct in effectuating
`its scheme to use third parties to expand and grow Instagram’s platform beyond the Instagram app
`and Instagram.com website. Instagram’s scheme caused third party website publishers to believe
`they were “free” to embed valuable copyrighted works into their websites without paying a
`licensing fee to copyright owners, and in turn Instagram directly benefited from the significant
`traffic, views and impressions generated from users viewing and interacting with the display of
`the embedded copyrighted works. Instagram is liable for damages for each copyrighted work
`infringed by each third-party embedder.
`PARTIES
`II.
`11.12. Plaintiff Alexis Hunley is a resident of California. She is the owner of copyrighted
`works that have been unlawfully embedded from Instagram without her permission, a license or
`other valid legal defense, and for which Hunley has not been compensated. Specifically,
`BuzzFeed, Inc. embedded her copyrighted photo, attached as Exhibit A (page 10), from her
`Instagram account into a BuzzFeed post about the 2020 George Floyd protests without her
`permission or a license. The copyrighted photo is Exhibit B. The Copyright Registration for
`Hunley’s photo is Exhibit C. Hunley’s Instagram account and the photo (Exhibit B) are found at
`https://www.instagram.com/byalexishunley/.
`12.13. Plaintiff Matthew Scott Brauer is a resident of Massachusetts. He is the owner of
`copyrighted works that have been unlawfully embedded from Instagram without his permission, a
`license or other valid legal defense, and for which Brauer has not been compensated.
`Specifically, Time.com embedded his copyrighted photo from his Instagram account into a
`Time.com post about the 2016 presidential election without his permission or a license and is
`attached as Exhibit D (page 3). Brauer’s copyrighted photo is attached as Exhibit E. The US
`Copyright Registration for Brauer’s photo is attached as Exhibit F. The title for the photo in the
`registration is JGP151203.JPG. Brauer’s Instagram account where the photo (Exhibit E) is found
`at https://www.instagram.com/mscottbrauer/.
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`FIRST AMENDED CLASS ACTION COMPLAINT
`FOR DAMAGES BASED ON COPYRIGHT INFRINGEMENT
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`Case 3:21-cv-03778-CRB Document 29 Filed 10/19/21 Page 7 of 38
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`A.
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`13.14. Defendant Instagram, LLC is a Delaware limited liability company with its
`principal place of business at 1601 Willow Road, Menlo Park, California 94025. Instagram is
`wholly owned by Facebook, Inc., and is located within this judicial district.
`III.
`JURISDICTION AND VENUE
`14.15. This is a civil action seeking damages and injunctive relief for copyright
`infringement under the Copyright Act, 17 U.S.C. § 101 et seq.
`15.16. This Court has original subject matter jurisdiction over all claims pursuant to
`28 U.S.C. §§ 1331 and 1338(a).
`16.17. This Court also has subject matter jurisdiction under 28 U.S.C. § 1332(d)(2)(A)
`because: (i) members of the Class are citizens of a State different from that of Defendant
`Instagram; and (ii) aggregating the claims of individual Class members, the total matter in
`controversy exceeds the sum or value of $5,000,000, exclusive of interests and costs. Further, 28
`U.S.C. 1332(d)(5) does not apply because (i) Defendant is not a State, State official, or other
`governmental entity against whom the Court may be foreclosed from ordering relief, and (ii) the
`number of members of the Class in the aggregate exceeds 100.
`17.18. This Court has personal jurisdiction over Defendant. Instagram maintains its
`corporate headquarters in California and in this District. Defendant has transacted business within
`California and contracted to supply goods or services in California in connection with the matters
`giving rise to this suit. Defendant has also contributed to copyright infringement causing injury to
`Plaintiffs and members of the Class in California. Defendant regularly solicits and does business
`in California and derives substantial revenue therefrom.
`18.19. Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b), (c) and 1400(a)
`because Defendant is headquartered in this District, and a substantial part of the events and
`transactions giving rise to the claims alleged herein occurred in this District.
`19.20. In addition, Instagram’s terms of use provide that all claims against it must be
`litigated in the United States District Court for the Northern District of California.
`IV.
`FACTUAL ALLEGATIONS
`The Importance of Copyright and the Display Right
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`FIRST AMENDED CLASS ACTION COMPLAINT
`FOR DAMAGES BASED ON COPYRIGHT INFRINGEMENT
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`CASE NO. 3:21-CV-03778-CRB
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`Case 3:21-cv-03778-CRB Document 29 Filed 10/19/21 Page 8 of 38
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`20.21. Copyrights are the legal title to intellectual property by which creators of original
`content such as photos and videos protect their moral and economic rights in that content.
`21.22. Respecting and defending the financial value of creators’ copyrighted works is a
`bedrock of our democracy, so important that the Founding Fathers enshrined the U.S.
`Constitution with specific references to copyrights, and which expressly gave Congress the power
`to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors
`and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const.
`Article I, Section 8. “Copyright law encourages people to create original works and thereby
`‘ultimately serves the purpose of enriching the general public through access to creative works.’”
`Fogerty v. Fantasy, Inc., 510 U.S. 517, 526 (1994). The Supreme Court of the United States
`found that by “establishing a marketable right to the use of one’s expression, copyright supplies
`the economic incentive to create and disseminate ideas.” Harper & Row Publishers, Inc. v.
`Nation Enters., 471 U.S. 539, 558 (1985).
`22.23. The importance of copyright enforcement is not limited to this country. Dating
`back to the early 1500s, French courts recognized that only the creators of works, or their
`assigned heirs, should have the right to publish those works. In 1886, more than 10 countries
`signed the Berne Convention for the Protection of Literary and Artistic Works, whose stated
`purpose is the “protection of the rights of authors in their literary and artistic works.” The
`Convention ensures that authors are afforded the same protections in those signatory countries as
`they would enjoy within their own country, thereby promoting the worldwide distribution of
`creative works while at the same time ensuring that the rights of the author of a work created in
`one country will not be circumvented through the infringement of those rights in another country.
`As of the date of this complaint, 188 countries, including the United States, have signed the Berne
`Convention.
`23.24. The 1976 Copyright Act makes it illegal to publicly perform, publicly display,
`distribute, or reproduce a copyrighted work except in limited instances, and provides for statutory
`damages, willful statutory damages, and the right to recover attorneys’ fees. 17 U.S.C. §§501 et
`seq.
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`FIRST AMENDED CLASS ACTION COMPLAINT
`FOR DAMAGES BASED ON COPYRIGHT INFRINGEMENT
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`CASE NO. 3:21-CV-03778-CRB
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`24.25. In 1976, the Copyright Act was amended to give content creators such as
`photographers and videographers an automatic copyright in their photos and videos.
`25.26. To file suit based on an alleged infringement, that automatic copyright interest
`must be registered with the U.S. Copyright Office. Plaintiffs allege that they secured valid
`copyright registrations in their respective photos.
`26.27. Plaintiffs allege that embedding from a social media platform to a third-party
`website of a copyrighted work without permission or a license or valid legal defense infringes on
`the display right set forth in the Copyright Act.
`27.28. Section 106 of the Copyright Act (the “Act”) grants copyright owners the
`exclusive public display right and control of the economic value of their work.
`28.29. The legislative history of the display right under the Act confirms that the statute
`was intended to reach conduct like the use of embedding regardless of the physical location of
`where the digital copy of the file of a photo or video has been displayed or whether the primary
`infringer (BuzzFeed or Time.com in this instance) holds or stores a physical copy of the digital
`file.copy of the file of a photo or video has been displayed.
`30.
`The physical location or possession of the displayed copy is not relevant or an
`underlying requisite to the display right under the plain language of the Copyright Act.
`31.
`Section 106(5) of the Copyright Act protects a copyright owner’s exclusive right
`to “display the copyrighted work publicly.” 17 U.S.C. § 106(5). One displays a work when he or
`she “show[s] a copy of it, either directly or by means of … any … device or process.” Id. § 101.
`The Act provides that one displays a work “publicly” by, among other things, “transmit[ting] or
`otherwise communicat[ing]” the work to members of the public “by means of any device or
`process,” and further defines “‘transmit’ a … display” as “to communicate it by any device or
`process whereby images or sounds are received beyond the place from which they are sent.” Id.
`32.
`By the plain language of the statute, therefore, a direct infringer need not have
`obtained or reproduced his or her own copy of the work in order to “display” it, as long as he or
`she caused the images or sounds of the work—whether directly or indirectly, and by any “device
`or process”—to be “received beyond the place from which they are sent.” Id.; see also H.R. Rep.
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`FIRST AMENDED CLASS ACTION COMPLAINT
`CASE NO. 3:21-CV-03778-CRB
`FOR DAMAGES BASED ON COPYRIGHT INFRINGEMENT
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`Case 3:21-cv-03778-CRB Document 29 Filed 10/19/21 Page 10 of 38
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`No. 94-1476, at 64 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5677 (“In addition to the direct
`showing of a copy of a work, ‘display’ would include the projection of an image on a screen or
`other surface by any method ….”).
`33.
`This reading is also consistent with the Supreme Court’s admonition that, to
`determine whether a work is infringed under the Copyright Act, a court must “focus on the [work]
`as presented to, and perceptible by” the public. N.Y. Times Co. v. Tasini, 533 U.S. 483, 499
`(2001). For purposes of the display right, then, it is the viewer’s experience that matters, not the
`internal mechanics of how the content is stored or retrieved. The Supreme Court’s decision in
`Tasini instructed that courts must “focus on the [works] as presented to, and perceptible by” the
`public. 533 U.S. at 499.
`34.
`As the Supreme Court observed seven (7) years after Perfect 10, the Copyright Act
`is not concerned with the “behind-the-scenes way” that content is delivered, “invisibl[y]” to the
`recipient, Am. Broad. Cos. v. Aereo, Inc., 134 S. Ct. 2498, 2507-08 (2014), and such technical
`considerations are “not adequate to place [the defendant’s] activities outside the scope of the
`Act,” id. at 2511. Whether the displayed copy of the work resides on the defendant’s server or
`that of a third party is therefore immaterial to the display right; the only question is whether the
`defendant caused the work to be viewed by members of the public, regardless of whether the
`defendant did so “either directly or by means of … any … device or process.” 17 U.S.C. § 101
`(emphasis added).
`35.
`Third party embedders (such as Time.com or BuzzFeed.com) through a “device or
`process” of using embed code (a process legally indistinguishable from in-line linking or other
`methods of providing HTML instructions for image retrieval), caused the images to be viewed on
`their own websites and, therefore, the third party embedders “displayed” those images for
`purposes of the Copyright Act.
`36.
`It is immaterial that a website publisher such as Time.com or BuzzFeed.com who
`chose to embed an image may not control whether that image is subsequently removed from the
`server on which it is hosted, in this instance Instagram. For purposes of the Copyright Act, the
`third party website publisher has the ability to control whether the image is shown on its website
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`FIRST AMENDED CLASS ACTION COMPLAINT
`CASE NO. 3:21-CV-03778-CRB
`FOR DAMAGES BASED ON COPYRIGHT INFRINGEMENT
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`Case 3:21-cv-03778-CRB Document 29 Filed 10/19/21 Page 11 of 38
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`in the first place. The website owner controls the code for its website, and it is the act of using the
`embed code to show the image that is covered by the public display right.
`37.
`The Ninth Circuit in Perfect 10 was careful to note that it “d[id] not address
`whether an entity that merely passively owns and manages an Internet bulletin board or similar
`system violates a copyright owner’s display and distribution rights when the users of the bulletin
`board or similar system posts infringing works.” Perfect 10, 508 F.3d at 1160 n.6.
`38.
`There are four key participants factually involved in the “display” right functions
`under the Copyright Act for this case. Participant one (1) is the creator of the copyrighted photo,
`in this example, Plaintiff Alexis Hunley. Participant two (2) is Defendant Instagram, the
`technology platform that stores the digital code (jpeg) for the physical copy of Plaintiff’s photo
`and putting aside its other wrongful conduct related to its handling of copyrighted content for this
`illustration. Participant three (3) is the entity that copies and pastes more code (the API embed
`code) to cause Plaintiff’s photo to simultaneously be displayed at both its place of origin
`(Instagram) and elsewhere on the internet. In this example, BuzzFeed.com, a non-party in this
`litigation, pasted the API code assigned to Plaintiff Hunley’s Instagram post displaying the photo
`within a BuzzFeed.com article so that the photo appeared in the article at the very same time it is
`also displayed within Plaintiff’s Instagram account. Participant four (4) is the viewer, a member
`of the public and a non-party in this case, who more likely than not does not know or care where
`the digital copy is stored, only that that they are seeing a display of the Photo inside the website to
`which the embed code was placed, in this example, BuzzFeed.com.
`39.
`A visual step-by-step of the process of a “display” right infringement requires
`considering the viewer’s perspective, which starts with the capturing/creation of a photo, then the
`photo being uploaded on Defendant Instagram’s service, then it being displayed through the
`unauthorized embedding of that photo by a third-party publication (for example, BuzzFeed), and
`finally resulting in the viewer seeing the photo within the context of the target website.
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`FIRST AMENDED CLASS ACTION COMPLAINT
`FOR DAMAGES BASED ON COPYRIGHT INFRINGEMENT
`
`
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`
`CASE NO. 3:21-CV-03778-CRB
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`Case 3:21-cv-03778-CRB Document 29 Filed 10/19/21 Page 12 of 38
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`Step 1: An Instagram user, such as Plaintiff Hunley, creates a photograph.
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`Step 2: The Instagram user then logs on to her account. Here, Plaintiff Hunley’s account is
`shown:
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`FIRST AMENDED CLASS ACTION COMPLAINT
`FOR DAMAGES BASED ON COPYRIGHT INFRINGEMENT
`
`
`
`
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`CASE NO. 3:21-CV-03778-CRB
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`Case 3:21-cv-03778-CRB Document 29 Filed 10/19/21 Page 13 of 38
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`Step 3: The Instagram user then selects the photo to upload to her Instagram account,
`where she has the option of using Instagram’s cropping and filters tools to make adjustments to
`the photo. Here, Plaintiff Hunley’s photo at issue in this case has been cropped and toned in black
`and white:
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`Step 4: The Instagram user then publishes her photo to her Instagram profile and adds a
`caption as a post that also gets displayed to anyone who has subscribed to (i.e., “follows”) that
`user, or, where the user’s account is not set to “private,” anyone who navigates to that user’s
`publicly viewable profile and photos uploaded to that profile. Here, Plaintiff Hunley’s photo is
`shown as it appears as uploaded to her Instagram account:
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`- 12 -
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`FIRST AMENDED CLASS ACTION COMPLAINT
`FOR DAMAGES BASED ON COPYRIGHT INFRINGEMENT
`
`
`
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`
`CASE NO. 3:21-CV-03778-CRB
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`Case 3:21-cv-03778-CRB Document 29 Filed 10/19/21 Page 14 of 38
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`Step 5: Instagram’s technology allows anyone from the public, including non-Instagram
`users, to take a number of actions with regard to an Instagram user’s individual posts, including
`reporting the photo for indecent content (“Report”), following or unfollowing the user
`(“Unfollow”), or embedding the photo for simultaneous display elsewhere on the Internet outside
`of the Instagram website or application (“Embed”), such as on BuzzFeed’s website, without ever
`downloading the photo’s digital jpeg file, similar to streaming a video from a cloud-based server.
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`Step 6: To embed an Instagram user’s post, anyone, including BuzzFeed.com merely
`needs to copy the unique HTML code assigned and created for that post, which Instagram
`generates code that causes the photo to be displayed (“API embed code”) on websites such as
`BuzzFeed.com.
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`FIRST AMENDED CLASS ACTION COMPLAINT
`FOR DAMAGES BASED ON COPYRIGHT INFRINGEMENT
`
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`CASE NO. 3:21-CV-03778-CRB
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`Case 3:21-cv-03778-CRB Document 29 Filed 10/19/21 Page 15 of 38
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`Step 7: Anyone with an internet connection, including BuzzFeed.com in this instance, can
`then “copy” and “paste” the API embed code into its website and cause the Instagram user’s post
`(and the photo) to be displayed. The fourth party here, the viewer, sees Plaintiff’s photo in the
`BuzzFeed article and does not know (or likely care) that BuzzFeed does not have physical
`possession of the digital file of the Photo. This is as the viewers see the display of the photo:
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`- 14 -
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`FIRST AMENDED CLASS ACTION COMPLAINT
`FOR DAMAGES BASED ON COPYRIGHT INFRINGEMENT
`
`
`CASE NO. 3:21-CV-03778-CRB
`
`

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`Case 3:21-cv-03778-CRB Document 29 Filed 10/19/21 Page 16 of 38
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`40.
`As the Register of Copyrights testified during the hearings that led to passage of
`the Copyright Act, “the definition [of the display ri