Copyright law only works when it successfully balances two objectives: incentivizing authors to produce creative works and ensuring the public has access to enjoy those works. Technology has advanced significantly since passage of the Copyright Act of 1976, and both the dramatic expansion of the internet and digitization of creative works have repeatedly challenged the law in pursuing those ends. The internet has presented a fundamental question to courts who must decide whether to view conduct through the lens of the virtual reality of the internet or the physical reality that allows the internet to function. This seemingly innocuous decision, often made without significant consideration of the differences, is sometimes decisive for a case.
The Ninth Circuit faces just such a case in Hunley v. Instagram, LLC. Several photographers, risking life and limb to capture front-line events of the George Floyd protests occurring across the nation, posted their hard-won photos on their Instagram accounts. BuzzFeed, writing a story on the protests, scraped the works off Instagram and embedded them in its story without consent or compensation of the photographers. Bound by the Server Test, circuit precedent requiring courts to focus on highly technical factors of the internet, the district court dismissed Hunley’s infringement case without properly balancing the core objectives of copyright law.
The flaw in the court’s reasoning rests in its choice of perspective. By focusing on technical details, instead of the parties’ conduct, the court fails to consider the purpose and intent of copyright law. It neglects the reality of how the public experiences the internet, and who the public gives credit for the content it consumes. The court also opens itself up to errors by tackling topics far outside its comfort zone. Copyright law was designed to achieve and maintain balance despite advances in technology, and courts would better honor that end by focusing on the conduct of the parties, not the technological details. This Note explores the different perspectives courts can choose when confronted by cases involving the internet, and then it shows why the Server Test is a flawed interpretation of the Copyright Act in need of revision. It concludes by presenting alternative reasoning and statutory tools, including implied license and fair use, that would better allow courts to resolve controversies involving copyright on the internet.
