Ars Tecnica is reporting - in an article with the provocative headline "Instagram just threw users of its embedding API under the bus" - that a company spokesperson for Facebook (which owns Instagram) has stated, on the record, that Instagram's terms of use do not grant permission to users of its embedding API to display embedded images on their websites without additional permissions from the copyright owners. Specifically, Ars reports:

"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."

This statements comes on the heels of a spate of lawsuits brought by professional photographers against news websites alleging that the websites' use of Instagram's embedding API to display images originally posted by the photographers on their personal Instagram accounts constitutes copyright infringement. (See this post about two decisions issued just last week.) In these cases, the defendants typically argue (among other things) that photographers, like all users of Instagram, authorize this use when they sign up for Instagram and make their accounts public. 

This argument was addressed at length (and with some finesse) in Sinclair v. Mashable, Inc. (the subject of the post), where Judge Kimba Wood held that the defendant in that case (Mashable) was not liable to a photographer for copyright infringement when Mashable used Instagram's API to embed one of her photos in an article. To reach this result, Judge Wood trekked through the relevant terms of use and policies that make up the "permission infrastructure" of instagram and concluded that: (1) pursuant to Instagram's Terms of Use ("TOU"), platform users grant to Instagram broad rights to sublicense their content to third parties, (2) Instagram's Privacy Policy informs platform users that if they choose to make their accounts public, their posts are "subject to use under our Instagram API," and (3) Instagram's Platform Policy (which governs the use of its API) permits "broadcasters and publishers" to "get digital rights to media and share media using web embeds." Here's the path that Judge Wood took:

At a more abstract level, Judge Wood essentially held that (1) platform users grant to Instagram broad rights to use their content, and (2) Instagram, in turn, sublicenses to API users (including publishers) the right to embed that content on their websites. Think of it as links in a chain, with Instagram smack dab in the middle facilitating the transfer of rights from platform user to API user:

Instagram's spokesperson didn't identify any misstep in Judge Wood's reasoning; instead, the spokesperson kept it very high level. That leaves it to us to unpack Instagram's statement and see how it measures up against the provisions in Instagram's TOS, Privacy Policy and Platform Policy and Judge Wood's reasoning in Sinclair.

1.  "While our terms allow us to grant a sub-license ..."  

Instagram's statement begins with the first link in the chain:  the license from platform users to Instagram. Here, Instagram acknowledges that it secures from platform users the right to sublicense their content to third parties. Although Instagram doesn't say it expressly, its position appears to be that the rights granted by platform users are broad - certainly broad enough to enable Instagram, should it be so inclined, to sublicense to news organizations the right to embed user content on their websites. So far, Instagram's statement is consistent with the language of the TOS and Judge Wood's opinion. 

2.  " ... we do not grant one for our embeds API." 

However, in the next part of the statement, Instagram says that it chooses not to grant such a sublicense to publishers. In other words, there is a break before the final link in the chain, and API users are left out in the cold:

This statement is absolute - there is no sublicense to embed platform user content, and there are no exceptions. So, if we take Instagram's statement at face value, Instagram is saying is that:

  1. It secures from platform users broad rights, including a right to sublicense their content to third parties;
  2.  It makes tools available to API users to facilitate the embedding of user content on websites;
  3.  It informs platform users and API users that one of the purposes of its Platform (including its API) is to allow sharing of user content "using web embeds;" and that public posts are "subject to use under our Instagram API," yet ...
  4.  It does not grant a sublicense to publishers to display the user content that delivered via its embeds API.

Instagram is the designer of its platform, the author of the governing terms and policies, and the ruler of its kingdom. Instagram's house, Instagram's rules. So there is no question that Instagram could establish rules that would require news publishers to secure permission directly from platform users before displaying the users' content that is delivered via Instagram's embed API. The questions is: has it really done so? 

3.  "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."

This brings us to the final part of the statement. Here, Instagram states that its "policies" require publishers to have "necessary rights," including a license, from rights holders "if a license is required by law." (I discuss the final caveat below in paragraph 4.) This requires a deeper dive into Instagram's policies.

At the outset, it's worth noting that Instagram's terms and policies are complex and are not free from ambiguity. In some places, they employ broad and general language, capturing principles that (presumably) are intended to be flexible enough to cover both current and yet-to-be invented functionality for its platform and uses for its API. On occasion, this results in gaps that need to be filled in. They sometimes require the interpreter to toggle between different documents (which does nothing to aid comprehension). As a result, it is not a huge surprise that platform users and API users can point to different provisions to support their respective arguments. 

Arguments Supporting that a Sublicense is Granted.

Judge Wood concluded, after a careful examination, that if you read the Platform Policies in their totality in conjunction with the TOS and Privacy Policy, it is sufficiently clear that Instagram has, in fact, granted a sublicense to API users to display platform user content through an embed. Supporting her interpretation are the following:

➤ First, as noted above, the Privacy Policy informs platform users that their posts are "subject to use under our Instagram API" if they make their accounts public, and the Platform Policy states that one of the purposes of its Platform (including its API) is to enable "broadcasters and publishers" to "get digital rights to media and share media using web embeds"). Read together, these tend to support that Instagram grants a content sublicense to API users for embedding, and that platform users agree to this sublicense when they make their accounts public.

➤ Second, the Platform Policy imposes a number of requirements on API users, including some limitations on how content accessed via its API can be used. For example, API users are permitted to "store or cache User Content for the period necessary to provide your app's service," and, when caching User Content, they are required to "keep it up to date." The existence of these limitations tends to support that Instagram grants a sublicense but then limits the scope of that sublicense in specific ways. And, it is worth noting that these limitations do not include a clear statement that publishers using Instagram's embeds API must obtain a direct license from platform users before displaying their content. 

➤ Third, and by contrast, the Platform Policy does affirmatively require API users to obtain additional consent from platform users in one situation:  API users must "[o]btain a person's consent before including their User Content in any ad." By calling out one particular use case as requiring platform user consent (i.e., commercial uses), the Platform Policy arguably implies that consent is not required for other uses (i.e., editorial uses). After all, if consent were always required, there would be no reason to include a provision requiring that consent be obtained in one specific situation. Moreover, making a distinction between editorial use and commercial use is quite common in content licensing (e.g., from stock houses like Getty), providing some additional support that Instagram is issuing a sublicense to API users consistent with industry practices. 

Arguments Supporting that No Sublicense is Granted

There are other provisions in the Platform Policy that arguably cast doubt as to whether Instagram does, in fact, grant a content sublicense to API users. Those provisions, at least in part, led Judge Katherine Failla to issue an opinion last week that diverges in an important way from Judge Wood's decision in Sinclair. (Judges Failla and Wood both serve in the Southern District of New York.)

In McGuckin v. Newsweek, the plaintiff - a photographer who had posted on his Instagram account a photograph of an ephemeral lake in Death Valley - sued Newsweek for embedding that photo in an online article. Citing Sinclair, Newsweek argued that the case should be dismissed on the grounds that the use was authorized. Judge Failla agreed with Judge Wood's "well-reasoned" opinion that the plaintiff had granted to Instagram a right to sublicense the use of his photo to third parties (i.e., the first link in the chain):  "insofar as Plaintiff contends that Instagram lacks the right to sublicense his publicly posted photographs to other users, the Court flatly rejects that argument." However, Judge Failla wasn't so sure that Instagram had granted a sublicense to Newsweek to display the photo, via an embed, on its website (i.e., the second link in the chain). In the court's words (with citations omitted):

"As Plaintiff notes in his supplemental opposition brief, there is no evidence before the Court of a sublicense between Instagram and Defendant. Although Instagram’s various terms and policies clearly foresee the possibility of entities such as Defendant using web embeds to share other users’ content (see Wolff Decl., Ex. G at 2 (noting that Instagram’s Platform exists in part “to help broadcasters and publishers discover content, get digital rights to media, and share media using web embeds”)), none of them expressly grants a sublicense to those who embed publicly posted content. Nor can the Court find, on the pleadings, evidence of a possible implied sublicense. While the Court acknowledges that it may be possible to read Instagram’s various terms and policies to grant a sublicense to embedders, the Court’s role on a Rule 12(b)(6) motion is to “draw all reasonable inferences in Plaintiff’s favor.” Given the limited review permitted at this stage, the Court cannot find that Defendant acted pursuant to a sublicense from Instagram." 

A few observations about the McGuckin opinion, and other provisions in the Platform Policy:

➤ First, is Judge Failla correct that there is no direct and clear sublicense from Instagram authorizing API users to display the User Content itself? The grant language in the Platform Policy provides:

"Licensed Uses and Restrictions: The Instagram Platform is owned by Instagram and is licensed to you on a worldwide (except as limited below), non-exclusive, non-sublicenseable basis in accordance with these terms. Your license to the Instagram Platform continues until it is terminated by either party. Please note that User Content is owned by users and not by Instagram. All rights not expressly granted to you are reserved by Instagram."

While the term "Platform" is defined to include Instagram's API, it is at least arguable that this defined term is intended to cover only Instagram's technology (e.g., the API) and not the user content that is made available via that technology. Also, what is the purpose of the "note" that calls out that "User Content is owned by users and not by Instagram"? Is that supposed to be a signal (albeit an extremely subtle one) that user content is not included in the "Platform" that is licensed to API users? Or is it merely intended to be another reminder that Instagram doesn't own, and therefore isn't responsible for, the user content, a reminder that dovetails with the Platform Policy's disclaimer that "the Instagram Platform and all data derived through such Platform are provided "as is" with no warranty, express or implied, of any kind"? You could argue it both ways.

➤ Second, the Platform Policy requires API users to “[c]omply with any requirements or restrictions imposed on usage of Instagram photos and videos … by their respective owners." The Platform Policy doesn't elucidate where and how owners would communicate to API users such "requirements and restrictions." Currently, there is no way (of which I am aware) to do this via the Instagram platform itself. At most, a platform user can set her entire account as private, which will make all of her content unavailable via Instagram's API. Does this language envision that the "requirements and restrictions" would be conveyed by the owner to the API user when the API user secures direct permission from the owner? Or does this language envisions a future day when Instagram introduces features that give platform users greater control over whether and how their content can be used by third parties via its API? Again, there are arguments on both sides.

➤ Third, and finally, the Platform Policy requires API users to:

"Comply with all applicable laws or regulations. Don't provide or promote content that violates any rights of any person, including but not limited to intellectual property rights, rights of privacy, or rights of personality. Don't expose Instagram or people who use Instagram to harm or legal liability."

Some posit that the highlighted language supports the argument that API users must obtain direct permission from platform users before using their content because otherwise they will be violating the IP rights of the platform users. Perhaps. But isn't it more likely that this extremely broad and general provision - which can be boiled down to the twin commandments (1) obey the law and (2) don't rip anyone off! - was a "catch all" that was intended to apply generally to the app or services that the API users provides? 

4.  "This includes ensuring they have a license to share this content, if a license is required by law."

Instagram's statement ends by noting that permission must be obtained from platform users only if "a license is required by law." The publishers who use Instagram's embed API typically make two additional arguments as to why their use is permitted under the law: (1) they argue that their embedding of the images is not infringement, as a matter of law, under the "server test" because they are merely linking to the images hosted on Instagram's server (which is a tricky area of law, see this post and this post), and (2) they argue that their display of images is permitted under the doctrine of fair use (which is another tricky area, see this post and this post). Nothing in Instagram's statement interferes with the ability of publishers to continue to make those arguments.

5.  Instagram's House; Instagram's Rules.

Ultimately, Instagram has to balance the interests of its platform users, the users of its API, and its own interests. The statement Instagram made to Ars may be intended to provide clarification, but it is insufficient to settle the matter definitely. A few final thoughts to bring to a close this post (which is way longer than i had intended!):

➤ First, the Platform Policy does not obviously impose different requirements on web publishers who use Instagram's API to embed images on their websites and other API users (like app developers) who use Instagram's API to exploit user content in different ways. If Instagram intends to have different rules apply to different types of API users and/or uses of its API, additional clarification would be welcome. 

➤ Second, this is not a "take it or leave it" situation. Instagram could revise its Platform Policy to prohibit certain types of uses by web publishers - such as an embed of a static image to illustrate an article (a use that traditionally would require a license fee) - and to authorize other uses - such as embedding a "stream" of user content into a feed or including user content in a gallery (which uses are more akin to the way content is shared on social media platforms and doesn't emphasize any single piece of content). Taking that approach could strike a better balance between the rights of individual platform users (including professional photographers) and developers who want to create innovative ways to share user content via Instagram's API.  

➤ Third, it is reported that Instagram is considering adding functionality that will give platform users more control over their images - such as the ability to keep an account public but designate specific content as off limits to Instagram's API. User choice is always a good thing.

➤ Fourth, as Instagram rethinks (or merely clarifies) these issues, it should bear in mind that most Instagram users are not professional photographers and, as such, may not have the same concerns as the pros about how their content is used off Instagram's platform. Anyone who has seen my personal photography would not mistake me for a professional. (That is an understatement.) And I would be perfectly content (and more than a little surprised) to have one of my Instagram photos embedded in an article.  

McGuckin v. Newsweek No.19-cv-09617-KPF (S.D.N.Y. June 1, 2020)

Sinclair v. Mashable, Inc., 2020 WL 1847841 (S.D.N.Y. Apr. 13, 2020)