Publications

The Ninth Circuit recently revisited the issue of “embedding” content by a website and its implication for copyright infringement claims. On July 17, 2023, the Ninth Circuit issued its opinion in Hunley v. Instagram, LLC, and affirmed the trial court’s ruling that Instagram, a social media platform, could not face liability for secondary infringement under the “Server Test” because plaintiffs could not prove infringement of their copyrighted photographs since the third-party news platforms had “embedded,” but did not store, the copyrighted photos on their own websites. The Court ultimately reasoned that because the plaintiff posted their photos on Instagram and essentially stored a copy of those images on Instagram’s servers, Instagram did not violate or infringe on the plaintiff’s rights since Instagram had a sublicense to display photos posted onto their platform and the third-party news sites had “embedded” the content in their articles.

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It has been referred to as one of the top copyright cases to watch this year. This case, Alexis Hunley, et al v. Instagram, LLC, questioned the scope and validity of the Server Test, a copyright doctrine that was established by the 9th Circuit and has since been rejected by a number of courts.

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In Buergofol GmbH v. Omega Liner Company, Inc., 4-22-cv-04112 (DSD Jul. 13, 2023) (Karen E. Schreier), the court granted the defendant’s motion to compel and awarded monetary sanctions after the plaintiff failed to respond at all to discovery requests that the plaintiff had objected to as overbroad because the court ruled the plaintiff “still had an obligation to respond to the extent it did not object.”

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The Supreme Court decision in Andy Warhol Foundation v. Goldsmith changed the way fair use is analyzed. In determining fair use, four factors are examined. The first fair use factor examines the purpose and character of the use. Prior to this case, the focus has been on the transformative nature of the work itself. The Supreme Court in Campbell v. Acuff-Rose Music established this transformative use analysis when it said that the first fair use factor is an inquiry into whether “the new work merely “supersedes the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message[,]. . . in other words, whether and to what extent the new work is transformative.” This transformative use analysis took on great importance and often eclipsed the other fair use factors. Prior to this case, the focus was on whether the second work had a different aesthetic or conveyed a different meaning. If the work was transformative, it was almost always found to be fair use. 

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In response to Google L.L.C.’s (“Google”) and other’s petitions for inter partes review (“I.P.R.”) of two patents owned by Parus Holdings, Inc. (“Parus”), the Patent Trial and Appeal Board (“PTAB”) of the United States Patent and Trademark Office (“USPTO”) found a number of claims obvious over prior art. The Court of Appeals for the Federal Circuit affirmed the PTAB’s decision, shedding additional light on the requirements and burdens of patent owners when responding to I.P.R. petitions.

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On June 7, 2023, the Ninth Circuit issued its opinion in VHT, Inc. v. Zillow Group, Inc., in which it affirmed the trial court’s findings of infringement against Zillow and the award of statutory damages. In 2019, the Ninth Circuit had previously found mostly in Zillow’s favor as to an earlier trial and had reversed and remanded the case back for further proceedings.

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