Last Friday, social photo and video sharing platform Instagram LLC took aim at an amended complaint lodged by two photographers over the company’s alleged secondary copyright infringement that occurred when Instagram posts were embedded on third-party websites like those operated by Buzzfeed and Time. The revised complaint does not cure past factual deficiencies and instead tries to overcome them with improper legal arguments, the motion to dismiss says.
Previously, the Northern District of California dismissed the plaintiffs’ claims finding that they failed the Ninth Circuit’s “Server Test” which narrows copyright infringement to instances where a party stores copyrighted work on a server. The court ruled that by the plaintiffs’ own admission, the third parties did not store the embedded images and videos on their own servers.
“Buzzfeed and Time did not ‘fix’ the copyrighted work in any ‘tangible medium of expression,’ and did not display ‘copies of the copyrighted work’ under the Copyright Act,” Instagram recaps in its motion. In turn, because neither third party could be directly liable for copyright infringement, Instagram could not be secondarily liable either, the court opined.
Now, the social media platform asserts that the plaintiffs “should not be permitted to waste the Court’s limited resources by filing serial amended complaints that are subject to dismissal for the exact same reasons.” Instagram argues that the complaint merely recasts previously made assertions and inappropriately tries to assert legal arguments.
The company reiterates the court’s previous word of warning that if the plaintiffs take issue with the Server Test, they had better take their grievance to the Ninth Circuit. Instagram points out the plaintiffs “spend nearly four pages of the [amended complaint] delving into the legislative history of the Copyright Act and arguing that application of the Server Test here would be inconsistent with the legislative intent behind the Act.”
That argument is legal in nature, the defendant says, and improper in the pleading phase of the litigation when the plaintiff is confined to factual arguments. As such, Instagram asks that it be stricken from the complaint and the lawsuit dismissed with prejudice.
The plaintiffs’ response is due December 3. They are represented by Cera LLP, Law Offices Of Todd M. Friedman P.C., Duncan Firm P.A., and Hoben Law, and Instagram by Durie Tangri.
