FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALEXIS HUNLEY; MATTHEW 

SCOTT BRAUER, Individually and 

On Behalf of All Others Similarly 

Situated, 

Plaintiffs-Appellants, 

 v. 

INSTAGRAM, LLC, 

Defendant-Appellee.

No. 22-15293 

D.C. No. 3:21-cv03778-CRB 

OPINION

Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, District Judge, Presiding

Argued and Submitted February 6, 2023

San Francisco, California

Filed July 17, 2023

Before: Jay S. Bybee and Patrick J. Bumatay, Circuit 

Judges, and Richard D. Bennett,* District Judge.

Opinion by Judge Bybee

* The Honorable Richard D. Bennett, United States District Judge for the 

District of Maryland, sitting by designation.
2 HUNLEY V. INSTAGRAM, LLC

SUMMARY**

Copyright 

The panel affirmed the district court’s dismissal of an 

action brought by two photographers under the Copyright 

Act alleging that Instagram, LLC, violated their exclusive 

display right by permitting third-party sites to embed the 

photographers’ Instagram content. 

The panel held that, under Perfect 10 v. Amazon, 508 

F.3d 1146 (9th Cir. 2007), Instagram could not be liable for 

secondary infringement because embedding a photo does not 

"display a copy" of the underlying image. Perfect 10 set 

forth the “Server Test,” which provides that a copy of a 

photographic image is not displayed when it is not fixed in a 

computer’s memory. The panel held that Perfect 10 did not 

restrict the application of the Server Test to a specific type 

of website, such as search engines. Arguments that 

Perfect10 is inconsistent with the Copyright Act are 

foreclosed by Perfect 10 outside of an en banc 

proceeding. And Perfect 10 was not effectively overturned 

by American Broadcasting Co. v. Aereo, 573 U.S. 431 

(2014), which held that a streaming provider infringed 

broadcasters’ exclusive right of public performance. 

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
HUNLEY V. INSTAGRAM, LLC 3

COUNSEL

Solomon B. Cera (argued) and Pamela A. Markert, Cera 

LLP, San Francisco, California; Todd Friedman and Adrian 

R. Bacon, Law Offices of Todd M. Friedman P.C., 

Woodland Hills, California; James H. Bartolomei III, 

Duncan Firm P.A., Little Rock, Arkansas; Bryan D. Hoben, 

Hoben Law, Peekskill, New York; for Plaintiffs-Appellants.

Joseph C. Gratz (argued) and Ragesh K. Tangri, Morrison 

and Foerster LLP, San Francisco, California; Annie A. Lee, 

Durie Tangri LLP, San Francisco, California; Allyson R. 

Bennett, Morrison and Foerster LLP, Los Angeles, 

California; for Defendant-Appellee.

Stephen M. Doniger, Doniger/Burroughs PC, Venice, 

California; Michael P. Manapol, Beverly Hills, California; 

Mickey H. Osterreicher and Alicia Wagner Calzada, 

National Press Photographers Association, Athens, Georgia; 

for Amici Curiae American Photographic Artists, National 

Press Photographers Association, The Graphic Artists Guild, 

and Five Other Photography and Media Licensing 

Organizations.

Rebecca Tushnet, Lex Lumina PLLC, New York, New 

York, for Amici Curiae Google LLC, Pinterest Inc., Twitter 

Inc., and the Wikimedia Foundation Inc.

Amy Mason Saharia and D. Shayon Ghosh, Williams & 

Connolly LLP, Washington, D.C., for Amicus Curiae 

Internet Society.

Mitchell L. Stoltz and Cara Gagliano, Electronic Frontier 

Foundation, San Francisco, California; Alexandra 

Sternburg, Computer & Communications Industry 

Association, Washington, D.C.; Rachel B. Leswing, Authors 
4 HUNLEY V. INSTAGRAM, LLC

Alliance, Berkeley, California; for Amici Curiae Electronic 

Frontier Foundation, Computer & Communications Industry 

Association, American Library Association, Association of 

Research Libraries, Association of College & Research 

Libraries, Authors Alliance, and the Organization for 

Transformative Works.

OPINION

BYBEE, Circuit Judge: 

This copyright dispute tests the limits of our holding in 

Perfect 10 v. Amazon, 508 F.3d 1146 (9th Cir. 2007) in light 

of the Supreme Court’s subsequent decision in American 

Broadcasting Companies, Inc. v. Aereo, 573 U.S. 431 

(2014). Plaintiffs-appellees Alexis Hunley and Matthew 

Scott Brauer (collectively “Hunley”) are photographers who 

sued defendant Instagram for copyright infringement. 

Hunley alleges that Instagram violates their exclusive 

display right by permitting third-party sites to embed the 

photographers’ Instagram content. See 17 U.S.C. § 106(5). 

The district court held that Instagram could not be liable for 

secondary infringement because embedding a photo does not 

“display a copy” of the underlying images under Perfect 10. 

We agree with the district court that Perfect 10 

forecloses relief in this case. Accordingly, we affirm. 
HUNLEY V. INSTAGRAM, LLC 5 

 

I. FACTS AND PROCEEDINGS

A. Facts

1. The Background

Instagram is a social media platform where users share 

photo and video content to their followers. Users with public 

profiles grant Instagram a royalty-free sublicense to display 

their photos. Instagram’s infrastructure also allows thirdparty websites to “embed” public Instagram posts. 

Embedding1 is a method that allows a third-party website 

(the embedding website) to incorporate content directly from 

the website where it originally appeared (the host website). 

Websites are created using instructions written in Hypertext 

Markup Language (“HTML”). Perfect 10, 508 F.3d at 1155. 

HTML is a text-only code, meaning that the underlying 

HTML instructions cannot contain images. Instead, when a 

website wants to include an image, “the HTML instructions 

on the web[site] provide an address for where the images are 

stored, whether in the web[site] publisher’s computer or 

some other computer.” Id. 

Users access a website through a web browser 

application. Id. When a web creator wants to include an 

image on a website, the web creator will write HTML 

instructions that direct the user’s web browser to retrieve the 

image from a specific location on a server and display it 

according to the website’s formatting requirements. When 

the image is located on the same server as the website, the 

HTML will include the file name of that image. So for 

example, if the National Parks Service wants to display a 

1 We have sometimes referred to embedding as “in-line linking” or 

“framing.” 
6 HUNLEY V. INSTAGRAM, LLC

photo of Joshua Tree National Park located on its own 

server, it will write HTML instructions directing the browser 

to display the image file, <img src=“Joshua_Tree.jpg”>, and 

the browser will retrieve and display the photo, hosted by the 

NPS server. By contrast, if an external website wants to 

include an image that is not located on its own servers, it will 

use HTML instructions to “embed” the image from another 

website’s server. To do so, the embedding website creator 

will use HTML instructions directing the browser to retrieve 

and display an image from an outside website rather than an 

image file. So if the embedding website wants to show the 

National Park Service’s Instagram post featuring Joshua 

Tree National Park—content that is not on the embedding 

website’s same server—it will direct the browser to retrieve 

and display content from the Instagram’s server. The HTML 

instructions that direct a browser to embed an external social 

media post look something like this: 

<blockquote class="instagram-media" data-instgrm-captioned datainstgrmpermalink="https://www.instagram.com/p/Cso5eUUvWC4/?utm_sourc

e=ig_embed&utm_campaign=loading" data-instgrm-version="14" 

style=" background:#FFF; border:0; border-radius:3px; box-shadow:0 0 

1px 0 rgba(0,0,0,0.5),0 1px 10px 0 rgba(0,0,0,0.15); margin: 1px; maxwidth:540px; min-width:326px; padding:0; width:99.375%; width:-

webkit-calc(100% - 2px); width:calc(100% - 2px);"><div 

style="padding:16px;"> <a 

href="https://www.instagram.com/p/Cso5eUUvWC4/?utm_source=ig_e

mbed&utm_campaign=loading" style=" background:#FFFFFF; 

line-height:0; padding:0 0; text-align:center; text-decoration:none; 

width:100%;" target="_blank"> <div style=" display: flex; flexdirection: row; align-items: center;"> <div style="background-color: 

#F4F4F4; border-radius: 50%; flex-grow: 0; height: 40px; margin-right: 

14px; width: 40px;"></div> <div style="display: flex; flex-direction: 

column; flex-grow: 1; justify-content: center;"> <div style=" 

background-color: #F4F4F4; border-radius: 4px; flex-grow: 0; height: 

14px; margin-bottom: 6px; width: 100px;"></div> <div style=" 

background-color: #F4F4F4; border-radius: 4px; flex-grow: 0; height: 

14px; width: 60px;"></div></div></div><div style="padding: 19% 
HUNLEY V. INSTAGRAM, LLC 7

0;"></div> <div style="display:block; height:50px; margin:0 auto 12px; 

width:50px;"><svg width="50px" height="50px" viewBox="0 0 60 60" 

version="1.1" xmlns="https://www.w3.org/2000/svg" 

xmlns:xlink="https://www.w3.org/1999/xlink"><g stroke="none" 

stroke-width="1" fill="none" fill-rule="evenodd"><g 

transform="translate(-511.000000, -20.000000)" 

fill="#000000"><g><path d="M556.869,30.41. . . . <div style=" 

background-color: #F4F4F4; border-radius: 50%; flex-grow: 0; height: 

20px; width: 20px;"></div> <div style=" width: 0; height: 0; border-top: 

2px solid transparent; border-left: 6px solid #f4f4f4; border-bottom: 2px 

solid transparent; transform: translateX(16px) translateY(-4px) 

rotate(30deg)"></div></div><div style="margin-left: auto;"> <div 

style=" width: 0px; border-top: 8px solid #F4F4F4; border-right: 8px 

solid transparent; transform: translateY(16px);"></div> <div style=" 

background-color: #F4F4F4; flex-grow: 0; height: 12px; width: 16px; 

transform: translateY(-4px);"></div> <div style=" width: 0; height: 0; 

border-top: 8px solid #F4F4F4; border-left: 8px solid transparent; 

transform: translateY(-4px) translateX(8px);"></div></div></div> <div 

style="display: flex; flex-direction: column; flex-grow: 1; justifycontent: center; margin-bottom: 24px;"> <div style=" background-color: 

#F4F4F4; border-radius: 4px; flex-grow: 0; height: 14px; marginbottom: 6px; width: 224px;"></div> <div style=" background-color: 

#F4F4F4; border-radius: 4px; flex-grow: 0; height: 14px; width: 

144px;"></div></div></a><p style=" color:#c9c8cd; fontfamily:Arial,sans-serif; font-size:14px; line-height:17px; marginbottom:0; margin-top:8px; overflow:hidden; padding:8px 0 7px; textalign:center; text-overflow:ellipsis; white-space:nowrap;"><a 

href="https://www.instagram.com/p/Cso5eUUvWC4/?utm_source=ig_e

mbed&utm_campaign=loading" style=" color:#c9c8cd; fontfamily:Arial,sans-serif; font-size:14px; font-style:normal; fontweight:normal; line-height:17px; text-decoration:none;" 

target="_blank">A post shared by National Park Service 

(@nationalparkservice)</a></p></div></blockquote> <script async 

src="//www.instagram.com/embed.js"></script>

When the browser follows these HTML instructions, the 

browser will retrieve the image, caption, and formatting 

from the host website and display all these elements 

alongside content from the embedding website. The final 

product will show the external image “embedded” 

seamlessly into a third-party website. 
8 HUNLEY V. INSTAGRAM, LLC

As illustrated by the HTML instructions above, 

embedding is different from merely providing a hyperlink. 

Hyperlinking gives the URL address where external content 

is located directly to a user. To access that content, the user 

must click on the URL to open the linked website in its 

entirety. By contrast, embedding provides instructions to the 

browser, and the browser automatically retrieves and shows 

the content from the host website in the format specified by 

the embedding website. Embedding therefore allows users 

to see the content itself—not merely the address—on the 

embedding website without navigating away from the site. 

Courts have generally held that hyperlinking does not 

constitute direct infringement. See, e.g., Online Pol’y Grp. 

v. Diebold, Inc., 337 F. Supp. 2d 1195, 1202 n.12 (N.D. Cal. 

2004) (“[H]yperlinking per se does not constitute direct 

infringement because there is no copying, [but] in some 

instances there may be a tenable claim of contributory 

infringement or vicarious liability.”); MyPlayCity, Inc. v. 

Conduit Ltd., 2012 WL 1107648, at *12 (S.D.N.Y. Mar. 20, 

2012) (collecting cases), adhered to on reconsideration,

2012 WL 2929392 (S.D.N.Y. July 18, 2012).

From the user’s perspective, embedding is entirely 

passive: the embedding website directs the user’s own 

browser to the Instagram account and the Instagram content 

appears as part of the embedding website’s content. The 

embedding website appears to the user to have included the 

copyrighted material in its content. In reality, the embedding 

website has directed the reader’s browser to retrieve the 

public Instagram account and juxtapose it on the embedding 

website. Showing the Instagram content is almost 

instantaneous. 

Importantly, the embedding website does not store a 

copy of the underlying image. Rather, embedding allows 
HUNLEY V. INSTAGRAM, LLC 9 

 

multiple websites to incorporate content stored on a single 

server simultaneously. The host server can control whether 

embedding is available to other websites and what image 

appears at a specific address. The host server can also delete 

or replace the image. For example, the National Park 

Service could replace the picture of Joshua Tree at 

<Joshua_Tree.jpg> with a picture of Canyonlands National 

Park. So long as the HTML instructions from the third-party 

site instruct the browser to retrieve the image located at a 

specific address, the browser will retrieve whatever the host 

server supplies at that location. 

2. This case

Hunley and Brauer are photographers who own the 

copyrights to several of their works. Both have public 

Instagram profiles where they post some of their 

photography. 

BuzzFeed News and Time are platforms that share news 

content online. On June 3, 2020, during the Black Lives 

Matter protests, BuzzFeed News published an article titled 

“17 Powerful Pictures Of The Protests Through The Eyes of 

Black Photographers.” As part of that article, BuzzFeed

embedded one of Hunley’s Instagram posts. The embedded 

image showed Hunley’s Instagram username (called her 

“handle”) followed by Hunley’s photograph, which featured 

the hands of a protestor juxtaposed with a line of police 

officers: 
10 HUNLEY V. INSTAGRAM, LLC

Hunley owns the copyright to this photograph. BuzzFeed

did not seek a license from Hunley to display this photo as 

part of its news reporting, nor did BuzzFeed seek 

authorization directly from Instagram.2 BuzzFeed never 

2 Websites that embed Instagram’s content are bound by Instagram’s 

Platform Policy, and Instagram does not grant third parties a license to 

users’ works. Rather, Instagram maintains that third-party sites have the 

responsibility to seek permission from the copyright holder as “required 
HUNLEY V. INSTAGRAM, LLC 11

created a copy of or stored the underlying photo. Instead, 

BuzzFeed used HTML, provided by a feature on Instagram’s 

platform, to embed the Instagram post containing the photo, 

which made Hunley’s Instagram post appear on BuzzFeed’s 

website alongside BuzzFeed’s own content. 

Similarly, Time published an article on January 31, 2016, 

titled “These Photographers Are Covering the Presidential 

Campaign on Instagram.” As part of that article, Time

embedded one of Brauer’s Instagram posts, featuring a 

copyrighted photo of candidate Hillary Clinton:

by law.” According to Hunley, no third party obtained permission from 

Instagram to embed copyrighted content. 
12 HUNLEY V. INSTAGRAM, LLC

The post showed Brauer’s Instagram post in its entirety. 

Time did not seek a license from Brauer or permission from 

Instagram to display this photo. Because Time embedded 

Brauer’s Instagram post containing the photo, Time never 

stored or made a copy of Brauer’s photo. Instead, the 

embedding instructions caused Brauer’s Instagram post to 

appear on Time’s website alongside Time’s own content. 
HUNLEY V. INSTAGRAM, LLC 13

B. Proceedings Below 

Hunley and Brauer brought a class action suit against 

Instagram on behalf of other copyright owners whose work 

was “caused to be displayed via Instagram’s embedding tool 

on a third party website without the copyright owner’s 

consent.” Hunley alleged that Instagram’s embedding tool 

violated her exclusive display right under the Copyright Act 

by enabling third-party websites such as BuzzFeed and Time

to display copyrighted photos posted to Instagram. See 17 

U.S.C. § 106(5). Hunley brought three causes of action 

against Instagram: inducement of copyright infringement, 

contributory copyright infringement, and vicarious 

copyright infringement. Hunley alleged that “Instagram 

intentionally and brazenly encouraged, aided and induced 

third party embedd[ing websites] to cause to be displayed 

copyrighted photos and videos without making any effort to 

control or stop the rampant infringement” while “knowingly 

participating in such conduct.”3

Hunley conceded that Instagram is not a direct infringer, 

and these theories of secondary liability all rely on the 

existence of direct infringement by BuzzFeed and Time. See 

Perfect 10, Inc. v. Giganews, 847 F.3d 657, 671 (9th Cir. 

2017) (“Giganews”). Hunley thus alleged that third-party 

embedding websites, BuzzFeed and Time, infringed her 

display right even though they did not host or store a copy 

of the underlying image. Hunley sought damages and 

injunctive relief. 

3

 Hunley alleged that Instagram made embedding available to create a 

revenue stream for its photo-sharing platform, and that Instagram “reaps 

billions of dollars annually” from encouraging third parties to embed 

Instagram content. 
14 HUNLEY V. INSTAGRAM, LLC

Instagram filed a motion to dismiss, which the district 

court granted. The district court concluded that our holding 

in Perfect 10 precluded relief to Hunley. To violate the 

public display right, infringers must “display ‘copies’ of the 

copyrighted work.” 17 U.S.C. § 101. According to the 

district court, embedding websites that do not “‘store’ an 

image or video” do not “‘communicate a copy’ of the image 

or video and thus do[] not violate the copyright owner’s 

exclusive display right.” See Perfect 10, 508 F.3d at 1160–

61. Applying Perfect 10, the district court explained:

[BuzzFeed and Time] do not violate 

Instagram users’ exclusive display rights. 

Because they do not store the images and 

videos, they do not “fix” the copyrighted 

work in any “tangible medium of 

expression.” Therefore, when they embed 

the images and videos, they do not display 

“copies” of the copyrighted work. 

And without direct infringement by BuzzFeed or Time, 

Instagram could not be held secondarily liable. The district 

court also rejected Hunley’s arguments that Perfect 10 was 

limited to search engines and that Perfect 10 conflicted with 

the Supreme Court’s decision in Aereo, 573 U.S. 431. 

In February 2022, the district court denied Hunley leave 

to amend because “the deficiency in Hunley’s first two 

complaints cannot be cured.” Hunley’s amended complaint 

still alleged that Instagram’s servers—not those of BuzzFeed

or Time—hosted the infringing images. The district court

concluded that the “only fact that matters” for infringement 

purposes is storing the photos on servers, and that because 

Hunley could not remedy this issue, “amendment would be 
HUNLEY V. INSTAGRAM, LLC 15

futile.” The district court dismissed the action with 

prejudice, and Hunley timely appealed.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291, and 

we review de novo the district court’s dismissal under Rule 

12(b)(6). CallerID4u, Inc. v. MCI Commc'ns Servs. Inc., 

880 F.3d 1048, 1061 (9th Cir. 2018). 

III. ANALYSIS

We begin our analysis with the legal framework of the 

Copyright Act, including our interpretation of the Act in 

Perfect 10. We will then consider Hunley’s legal and policy 

arguments for limiting the scope of Perfect 10. We conclude 

by applying Perfect 10 to this case. 

A. The Copyright Act and Perfect 10

1. The Right of Public Display

The Copyright Act grants authors the exclusive right “to 

display the copyrighted work publicly.” 17 U.S.C. § 106(5). 

To infringe this exclusive right to public display, the 

infringer must “show a copy of [the work], either directly or 

by means of a film, slide, television image, or any other 

device or process.” 17 U.S.C. § 101 (definition of “display”). 

The Copyright Act defines “copies” as “material objects . . . 

in which a work is fixed by any method now known or later 

developed, and from which the work can be perceived, 

reproduced, or otherwise communicated, either directly or 

with the aid of a machine or device.” Id. (definition of 

“Copies”). For copyright purposes, “copy” does not 

necessarily mean a duplicate of the original, but includes the 

original itself: “The term ‘copies’ includes the material 

object . . . in which the work is first fixed.” Id. (definition of 
16 HUNLEY V. INSTAGRAM, LLC

“Copies”). And “[a] work is ‘fixed’ in a tangible medium 

of expression when its embodiment in a copy . . . is 

sufficiently permanent or stable to permit it to be perceived, 

reproduced, or otherwise communicated for a period of more 

than transitory duration.” Id. (definition of “fixed”). 

The Copyright Act went through significant amending in 

1976. Those amendments clarified that the public display 

right can also be infringed by a transmission. See Public 

Law 94-533 (Oct. 19, 1976). The amended statute states in 

relevant part:

To perform or display a work “publicly” 

means

(1) to perform or display it at a place open to 

the public or at any place where a substantial 

number of persons outside of a normal circle 

of a family and its social acquaintances is 

gathered; or

(2) to transmit or otherwise communicate a 

performance or display of the work to a place 

specified by clause (1) or to the public, by 

means of any device or process, whether the 

members of the public capable of receiving 

the performance or display receive it in the 

same place or in separate places and at the 

same time or at different times.

17 U.S.C. § 101 (definition of “publicly”). Part (2) of this 

definition is know as the Transmit Clause. To “transmit” a 

display means “to communicate it by any device or process 

whereby images or sounds are received beyond the place 

from which they are sent.” Id. (definition of “transmit”). By 
HUNLEY V. INSTAGRAM, LLC 17

 

this definition, an internet communication of an image 

necessarily implicates the Transmit Clause. Perfect 10, 508 

F.3d at 1161 n.7. A transmitted image is “fixed” for 

copyright purposes “if a fixation of the work is being made 

simultaneously with its transmission.” 17 U.S.C. § 101 

(definition of “fixed”). 

In sum, infringing the exclusive right of public display 

requires the transmission of a display. For a display to be 

actionable, it must display a copy. A copy means either an 

original or a duplicate that is fixed, and fixation requires 

embodiment in a perceivable format. See generally 17 

U.S.C. § 101. 

2. Perfect 10 Interprets 17 U.S.C. § 106(5) 

In Perfect 10 v. Amazon, Inc., we decided for the first 

time “when a computer displays a copyrighted work for 

purposes of section 106(5),” the right to public display. 508 

F.3d at 1160. In that case, Perfect 10, an online magazine 

that marketed photos of nude models, sued Amazon and 

Google for showing Perfect 10’s copyrighted images on their 

websites. Id. at 1157. Perfect 10 alleged that Google 

infringed its public display right by including pared-down 

thumbnail images in Google Image Search results and by 

embedding full-sized images from third-party websites, 

which posted copyrighted images without permission. Id. 

Google’s embedding feature worked in the following 

manner: 

When a user clicks on a thumbnail image, the 

user’s browser program interprets HTML 

instructions on Google’s webpage. 

Following these instructions, the browser 

creates a “window”: the infringing image 
18 HUNLEY V. INSTAGRAM, LLC

appeared “in its original context[] on the 

lower portion of the window on the user’s 

computer screen[,] framed by information 

from Google. Google did not host or store 

the image that filled the bottom part of the 

screen, nor did Google communicate the 

images to the user: the browser, following 

directions from Google, accessed the thirdparty website and relayed it to the user.

Id. at 1155–57. 

We interpreted the Copyright Act’s fixation requirement 

and found that an image is “fixed in a tangible medium of 

expression” when it is “embodied (i.e., stored) in a 

computer’s server, (or hard disk, or other storage device).” 

Id. at 1160 (citing MAI Sys. Corp. v. Peak Computer, Inc., 

991 F.2d 511, 517–18 (9th Cir. 1993)). Applying that 

interpretation, we concluded that a “computer owner shows 

a copy ‘by means of a . . . device or process’ when the owner 

uses the computer to fill the computer screen with the 

photographic image stored on that computer.” Id. (quoting 

17 U.S.C. § 101. And “a person displays a photographic 

image by using a computer to fill a computer screen with a 

copy of the photographic image fixed in the computer's 

memory.” Id. This requirement that a copy be “fixed in the 

computer’s memory” has come to be known as the “Server 

Test.” See id. at 1159 (“The district court referred to this test 

as the ‘server test.’”) (quoting Perfect 10 v. Google, Inc., 416 

F. Supp. 2d 828, 838–39 (C.D. Cal. 2006)); Free Speech 

Sys., LLC v. Menzel, 390 F. Supp. 3d 1162, 1171 (N.D. Cal. 

2019).

Applying the Server Test to the facts, we concluded that 

Google’s in-line linking (what we now call embedding) did 
HUNLEY V. INSTAGRAM, LLC 19

 

not display a “copy” of Perfect 10's copyrighted images as 

that term is defined in the Copyright Act. Id. at 1160–61. 

Because Google did not store a copy of the full-size images, 

but merely embedded them and allowed them to be 

displayed alongside its search results, “Google does not have 

a copy of the images for purposes of the Copyright Act.” Id. 

Without a copy on its servers, “Google transmits or 

communicates only an address which directs a user’s 

browser to the location where a copy of the full-size image 

is displayed. Google does not communicate a display of the 

work itself.” Id. at 1161 n.7. Although “Google may [have] 

facilitate[d] the user’s access to infringing images,” we 

concluded that “such assistance . . . does not constitute direct 

infringement.” Id. at 1161. 

B. Arguments for Limiting the Server Test

The district court held that Perfect 10 governed this case. 

On appeal, as before the district court, Hunley argues that 

Perfect 10’s Server Test does not determine the outcome in 

this case. First, Hunley argues that the Server Test should 

only apply to search engines such as Google. Second, 

Hunley argues that Perfect 10 is inconsistent with the 

Copyright Act. Third, Hunley argues that Perfect 10

conflicts with the Supreme Court’s subsequent decision in 

American Broadcasting Co. v. Aereo, 573 U.S. 431 (2014). 

Fourth and finally, Hunley argues that there are policy 

reasons for overruling Perfect 10. We disagree with each of 

these claims, and we will address each in turn.

1. Whether Perfect 10 should be limited to specific types 

of websites

Hunley argues that the Server Test should apply only “to 

search engines or other automated, algorithmic indexing 

platforms” and should not extend to “content embedded into 
20 HUNLEY V. INSTAGRAM, LLC

commercial websites from social media platforms.” 

Hunley’s argument finds no support in our law. 

Perfect 10 did not restrict the application of the Server 

Test to a specific type of website, such as search engines. To 

be sure, in Perfect 10, we considered the technical 

specifications of Google Image Search, including Google’s 

ability to index third-party websites in its search results. 

Perfect 10, 508 F.3d at 1155. We also noted Google’s 

reliance on an automated process for searching vast amounts 

of data: to create such a search engine, Google 

“automatically accesses thousands of websites . . . and 

indexes them within a database” and “Google’s computer 

program selects the advertising automatically by means of 

an algorithm.” Id. at 1155–56. But in articulating the Server 

Test, we did not rely on the unique context of a search 

engine. Our holding relied on the “plain language” of the 

Copyright Act and our own precedent describing when a 

copy is “fixed” in a tangible medium of expression. Id.

(citing 17 U.S.C. § 101). We looked to MAI Sys. Corp. v. 

Peak Computer, Inc., for the conclusion that a digital image 

is “fixed” when it is stored in a server, hard disk, or other 

storage device. 991 F.2d 511, 517–18 (9th Cir. 1993). 

Applying this fixation requirement to the internet 

infrastructure, we concluded that in the embedding context, 

a website must store the image on its own server to directly 

infringe the public display right. Perfect 10, 508 F.3d at 

1160. 

We have subsequently applied the Server Test outside 

the search-engine context. For example, in Bell v. Wilmott 

Storage Servs., LLC, 12 F.4th 1065 (9th Cir. 2021), a 

photographer sued a storage-service website over its use of 

his photo of the Indianapolis skyline. Although the image 

was not shown directly on Wilmott Storage Services’s 
HUNLEY V. INSTAGRAM, LLC 21

website, it was visible through a “reverse image search.” Id. 

at 1073. Because it was “undisputed” that the infringing 

photos were stored on Wilmott’s own server, “Wilmott 

transmitted, and therefore displayed, the Indianapolis photo 

without Bell’s permission.” We concluded that the storage 

and display was sufficient to hold Wilmott directly liable 

under the Copyright Act. Id. We have also applied the 

Server Test to blogs, see Perfect 10, Inc. v. Google, Inc., 653 

F.3d 976, 978 (9th Cir. 2011) (noting that “Blogger account 

holders may upload images from the web onto Google’s 

server in order to post them on their blogs, or may use a 

hyperlink to images hosted on other servers.”), and to online 

bulletin boards, Evox Prods., LLC v. Verizon Media, Inc., 

No. 21-56046, 2022 WL 17430309, at *1–2 (9th Cir. Dec. 6, 

2022) (unpublished) (holding Verizon liable for infringing 

the display right when it stored the image on its Yahoo Autos 

and Tumblr servers after its license with copyright owners 

had expired). 

Hunley points out that other circuits have not adopted the 

Server Test. The statement is true, but of little use to Hunley. 

At least two circuits have referred to the Server Test without 

either endorsing or rejecting it. In Soc'y of Holy 

Transfiguration Monastery, Inc. v. Gregory, 689 F.3d 29, 55 

(1st Cir. 2012), the First Circuit cited Perfect 10’s Server

Test when it noted that the infringing images “were 

embodied in a medium (here, the computer server and 

internet) where they could be perceived . . . by those who 

accessed the server.” Id. The Gregory court declined to 

adopt or reject the Server Test: 

Although the question of whether a computer 

has “displayed” a copyrighted work may be a 

difficult one in other contexts, see, e.g., 
22 HUNLEY V. INSTAGRAM, LLC

Perfect 10, 508 F.3d at 1160–62, it is beyond 

question here that the Archbishop has 

“displayed” the Works on his website. We 

need not delineate the outer bounds of the 

scope of the term “display” where, as here, 

the fact that the Works were “displayed” on 

the Archbishop's website is undisputed.

Id. at 55. Similarly, the Seventh Circuit cited with approval 

Perfect 10’s distinction between direct and secondary 

infringement in Flava Works, Inc. v. Gunter, 689 F.3d 754 

(7th Cir. 2012), a public performance case. The Flava 

Works court observed that “myVidster is giving web surfers 

addresses where they can find entertainment.” Id. at 761. 

Citing Perfect 10 and offering analysis consistent with the 

Server Test, the court stated:

By listing plays and giving the name and 

address of the theaters where they are being 

performed, the New Yorker is not performing 

them. It is not “transmitting or 

communicating” them. Is myVidster doing 

anything different? To call the provision of 

contact information transmission or 

communication and thus make myVidster a 

direct infringer would blur the distinction

between direct and contributory infringement 

and by doing so make the provider of such 

information an infringer even if he didn’t 

know that the work to which he was directing 

a visitor to his website was copyrighted. 

Id. at 761 (citing, inter alia, Perfect 10, 508 F.3d at 1159–

61).
HUNLEY V. INSTAGRAM, LLC 23

 

Although no circuit has disapproved of Perfect 10, 

several district courts have either rejected or limited the 

Server Test. See, e.g., McGucken v. Newsweek, 2022 WL 

836786 (S.D.N.Y 2022) (rejecting the Server Test); Nicklen 

v. Sinclair Broad. Grp., Inc., F. Supp. 3d 188 (S.D.N.Y 

2021) (rejecting the Server Test); Goldman v. Breitbart, 302 

F. Supp. 3d 585, 586 (S.D.N.Y 2018) (holding that 

publishing an embedded tweet featuring Tom Brady was 

sufficient for direct infringement, even if Twitter did not 

store or host the infringing image); Leader’s Institute, LLC 

v. Jackson, 2017 WL 5629514 (N.D. Tex. Nov. 22, 2017) 

(“[t]o the extent Perfect 10 makes actual possession of a 

copy a necessary condition to violating a copyright owner’s 

exclusive right to display her copyrighted works, the Court 

respectfully disagrees with the Ninth Circuit.”). 

We have not limited Perfect 10 to search engines, and it 

is too late to argue that it is so limited. The application of 

the Server Test depends on the method used for displaying a 

photo—not the context in which the photo is displayed. And 

the process used by BuzzFeed and Time to show users thirdparty Instagram content is the same process used by Google 

to show users third-party images: embedding. Nothing in 

Perfect 10 or the cases following it limits its application to 

search engines. 

2. Whether Perfect 10 Is inconsistent with the Copyright 

Act

Hunley argues that applying the Server Test to social 

media platforms is inconsistent with the Copyright Act’s 

statutory scheme. Hunley claims that the Server Test 

conflates the copyright holder’s exclusive right to display a 

work with his exclusive right to reproduce the work. 

Specifically, Hunley contends that after Perfect 10 an 
24 HUNLEY V. INSTAGRAM, LLC

infringer must violate the copyright holder’s reproduction 

right before the display right can be violated. This, Hunley 

says, renders portions of the Copyright Act superfluous or 

insignificant. See 17 U.S.C. § 106(1), (3). Hunley also 

claims that the Server Test cannot be reconciled with other 

provisions of the Copyright Act that prohibit transmissions 

by a party, whether or not the party possesses or controls a 

copy of the work allegedly infringed. And Hunley argues 

that the Server Test is inconsistent with other provisions 

related to “secondary transmissions of a performance or 

display.” 17 U.S.C. § 111; see also id. § 118–19. According 

to Hunley, “The Server Test, applied to a social media 

platform, contains an insupportable assumption that a 

transmission can have only one actionable source, and that 

such source must only be the place where the physical copy 

of the work is hosted.” 

We will not consider these arguments in any detail 

because they are foreclosed by Perfect 10. Whatever merit 

these arguments might have in other contexts, Perfect 10

states the rule for infringing the public display right using 

embedding. See, e.g., Perfect 10, 508 F.3d at 1162 

(discussing copies “in the electronic context”). In Perfect 

10, we did not address the precise arguments Hunley now 

presses, but we carefully considered display and distribution 

rights. See id. at 1159–63. Even if we thought, in retrospect, 

that Perfect 10 created some inconsistencies with other 

provisions of the Copyright Act, we are not free to overrule 

Perfect 10 outside of an en banc proceeding unless there has 

been a change in the statute or an intervening Supreme Court 

decision. See Langere v. Verizon Wireless Servs., LLC, 983 

F.3d 1115, 1121 (9th Cir. 2020). For the reasons described 

infra, we find no such intervening authority. 
HUNLEY V. INSTAGRAM, LLC 25

We have a similar response to Hunley’s arguments 

concerning the Copyright Act’s legislative history. Hunley 

identified various passages of legislative history from 1965, 

1967, and 1976 to show that Perfect 10 took an 

unnecessarily narrow view of the meaning of “display.” We 

have already given the statute a definitive reading in Perfect 

10, and we will not revisit a decision in light of materials 

available at the time of the decision. The Act’s legislative 

history is not law. See Nw. Env't Def. Ctr. v. Bonneville 

Power Admin., 477 F.3d 668, 684 (9th Cir. 2007). If we look 

to legislative history at all, we will only recur to it as an aid 

to understanding an ambiguous text. See Haro v. City of Los 

Angeles, 745 F.3d 1249, 1257 (9th Cir. 2014). Here, 

however, even Hunley has argued that “the Copyright Act is 

not ambiguous,” because Hunley claims that Perfect 10 is 

unambiguously wrong and that the legislative history 

confirms it. If Hunley believes there is an irreconcilable 

disjunct between Perfect 10 and some prior authority—

whether that is a prior decision of this court, a statute not 

considered by the prior panel, or legislative history—the 

proper procedure is to seek rehearing en banc. 

3. Whether Perfect 10 is inconsistent with Aereo

Finally, Hunley argues that Perfect 10 has been 

effectively overturned because it conflicts with the Supreme 

Court’s decision in American Broadcasting Company v. 

Aereo, 573 U.S. 431 (2014). In Aereo, ABC and other public 

broadcasting companies, television producers, marketers, 

and distributors (“the broadcasters”) sued Aereo, an 

equipment provider that offered a subscription to stream 

public broadcast television simultaneously over the internet. 

Id. at 436. Subscribers visited Aereo’s website to select 

shows from local programming. Id. Aereo dedicated a 

specific antenna to each subscriber, and the server tuned the 
26 HUNLEY V. INSTAGRAM, LLC

antenna to the selected over-the-air broadcast. Id. Aereo’s 

transcoder translated the signals and transmitted them to the 

subscriber over the internet. Id. Aereo saved the data “in a 

subscriber-specific folder on Aereo's hard drive.” Id. At the 

time of the suit, Aereo did not own any copyrights in the 

broadcasts, nor did it possess “a license from the copyright 

owners to perform those works publicly.” Id. The 

subscriber received the streamed transmission “a mere few 

seconds behind the over-the-air broadcast.” Id. at 437. The 

broadcasters brought suit against Aereo, alleging that Aereo 

infringed the broadcaster’s exclusive right “to perform the 

copyrighted work publicly.” 17 U.S.C. § 106(4). 

The infringement analysis required the Court to construe 

the Transmit Clause. Id. § 101 (definition (2) of “publicly”) 

(“to transmit or otherwise communicate a performance or 

display of the work . . . by means of any device or process . 

. . .”). The Court considered whether Aereo performed 

publicly within the meaning of the Copyright Act. Aereo, 

537 U.S. at 438. The Court first concluded that Aereo 

“performed.” As amended in 1976, the Copyright Act 

“clarifie[d] that to ‘perform’ an audiovisual work means ‘to 

show its image in any sequence or to make the sounds 

audible.’” Id. at 441 (quoting 17 U.S.C. § 101). The Court 

held that “both the broadcaster and the viewer of a television 

program ‘perform,’ because they both show the program’s 

images and make audible the program’s sounds.” Id. The 

Court concluded: “Aereo is not simply an equipment 

provider. Rather, Aereo, and not just its subscribers, 

‘perform[s]’ or ‘transmit[s].’” Id. (alteration in original). 

The Court noted that “[i]n other cases involving different 

kinds of service or technology providers, a user’s 

involvement in the operation of the provider's equipment and 

selection of the content transmitted may well bear on 
HUNLEY V. INSTAGRAM, LLC 27

whether the provider performs within the meaning of the 

Act.” Id. at 444. 

Hunley proposes two inconsistencies between Perfect 10

and Aereo: First, Hunley claims that the performance right, 

which was at issue in Aereo, “has equal value and weight as 

the display right” at issue in Perfect 10; in fact, Hunley 

argues that the two rights can be “easily [] interchanged.” 

Hunley reasons that because the performance and display 

rights are both “exclusive,” 17 U.S.C. § 106(4),(5), 

Instagram must be liable because Aereo was liable. Second, 

Hunley argues that “it is the practical, functional perspective 

of the public viewer, and not hyper technicalities, that must 

determine whether a particular mode of content or delivery 

system is infringing or not.” See Aereo, 573 U.S. at 443–44. 

We find both arguments unpersuasive. 

(a). Differences between the performance and the 

display right. The Copyright Act grants independent, 

exclusive rights “to perform . . . [and] to display [a] 

copyrighted work.” 17 U.S.C. § 106(4), (5). The Act’s 

definition of “display” means “to show a copy” of the 

underlying work. To “perform” means “to recite, render, 

play, dance or act it . . . or . . . to show its images.” Compare

17 U.S.C. § 101 (definition of “display”) with id. (definition 

of “perform”). Both the right to display and the right to 

perform can be infringed by transmission: the Transmit 

Clause expanded the definition of “perform[ing] or 

display[ing] a work ‘publicly’” to include “transmi[ssion] or 

other[] communicat[ion of] a performance or display of the 

work . . . by means of any device or process.” Id. § 101 

(definition of “To perform or display a work ‘publicly’”). 

However, infringing the public display right requires an 

underlying copy. By definition, displaying a work publicly 
28 HUNLEY V. INSTAGRAM, LLC

requires that the infringer display a copy of the work, id. 

§ 101 (definition of “display”); and transmission of a 

display means that someone has transmitted a copy of the 

work “to the public.” Id. (definition of “To perform or 

display a work ‘publicly’”). However, to infringe the public 

performance right, the infringer need not show or perform a 

copy of the underlying work. Id. § 101 (definition of 

“perform”).

This difference between these two rights are significant 

in this case. Perfect 10 and Aereo deal with separate 

provisions of the Copyright Act—Perfect 10 addressed the 

public display right, and Aereo concerned the public 

performance right. In Perfect 10, we analyzed what it meant 

to publicly display a copy in the electronic context. See 

Perfect 10, 508 F.3d at 1161. By contrast, in Aereo the 

Court did not address what it means to transmit a copy, 

because the public performance right has no such 

requirement. See Aereo, 573 U.S. at 439–44. In other 

words, regardless of what Aereo said about retransmission 

of licensed works, Perfect 10 still forecloses liability to 

Hunley because it answered a predicate question: whether 

embedding constitutes “display” of a “copy.” Perfect 10,

508 F.3d at 1160. Aereo may have clarified who is liable for 

retransmitting or providing equipment to facilitate access to 

a display—but unless an underlying “copy” of the work is 

being transmitted, there is no direct infringement of the 

exclusive display right. Thus, Perfect 10 forecloses 

Hunley’s claims, even in light of Aereo. 

There is an additional reason we cannot find liability for 

Instagram here. We held, prior to Aereo, that infringement 

under the Copyright Act requires proof of volitional conduct, 

the Copyright Act’s version of proximate cause. See Fox

Broad. Co., Inc. v. Dish Network LLC, 747 F.3d 1060, 1067 
HUNLEY V. INSTAGRAM, LLC 29

 

(9th Cir. 2013); Kelly v. Arriba Soft Corp., 336 F.3d 811, 

817 (9th Cir. 2003) (“To establish a claim of copyright 

infringement by reproduction, the plaintiff must show . . . 

copying by the defendant.”). And we are not alone, indeed, 

“every circuit to address this issue has adopted some version 

of . . . the volitional-conduct requirement.” BWP Media 

USA, Inc. v. T&S Software Assocs., Inc., 852 F.3d 436, 440 

(5th Cir. 2017) (citing cases). The Court in Aereo did not 

address volitional conduct as such, although Justice Scalia 

did so in his dissent. See Aereo, 573 U.S. at 453 (Scalia, J., 

dissenting). But the Court did distinguish between those 

who engage in activities and may be said to “perform” and 

those who engage in passive activities such as “merely 

suppl[ying] equipment that allows others to do so.” Id. at 

438–39. In any event, Perfect 10 was bound to apply our 

volitional-conduct analysis. When we applied our 

requirement that the infringer be the direct cause of the 

infringement, we concluded that the entity providing access 

to infringing content did not directly infringe, but the 

websites who copied and displayed the content did. Perfect 

10, 508 F.3d at 1160. 

Post-Aereo, we have continued to require proof of 

“causation [as] an element of a direct infringement claim.” 

Giganews, 847 F.3d at 666. In such cases we have taken 

account of Aereo and concluded that our volitional conduct 

requirement is “consistent with the Aereo majority opinion,” 

and thus remains “intact” in this circuit. Id. at 667; see Bell 

v. Wilmott Storage Servs., LLC, 12 F.4th 1065, 1081–82 (9th 

Cir. 2021); Oracle Am., Inc. v. Hewlett Packard Enter. Co., 

971 F.3d 1042, 1053 (9th Cir. 2020); VHT, Inc. v. Zillow 

Grp., Inc., 918 F.3d 723, 731 (9th Cir. 2019). Our volitional 

conduct requirement draws a distinction between direct and 

secondary infringement that would likely foreclose direct 
30 HUNLEY V. INSTAGRAM, LLC

liability for third-party embedders. And without direct 

infringement, Hunley’s secondary liability theories all fail. 

See Oracle Am., Inc., 971 F.3d at 1050. 

(b). The significance of user perception. Hunley and 

amici argue that viewer perception of a copyrighted image 

on a third-party website is sufficient to establish direct 

infringement. According to Hunley, because users perceive 

the same image whether the third-party website duplicates 

the photo on its own server or embeds the photo from 

Instagram, both instances should constitute direct 

infringement. Hunley points to the following passage from 

Aereo: 

Here the signals pursue their ordinary course 

of travel through the universe until today's 

“turn of the knob”—a click on a website—

activates machinery that intercepts and 

reroutes them to Aereo's subscribers over the 

Internet. But this difference means nothing to 

the subscriber. It means nothing to the 

broadcaster. We do not see how this single 

difference, invisible to subscriber and 

broadcaster alike, could transform a system 

that is for all practical purposes a traditional 

cable system into “a copy shop that provides 

its patrons with a library card.” 

Aereo, 573 U.S. at 444. Hunley argues that Aereo held that 

“[w]hat happens behind the curtain is . . . irrelevant to the 

consuming public, and so too should it be irrelevant in the 

eyes of the law.” 

We are reluctant to read too much into this passage. The 

Court commented on user perception to point out the 
HUNLEY V. INSTAGRAM, LLC 31

similarities between Aereo and traditional cable companies. 

These similarities mattered because the 1976 Copyright 

Amendments specifically targeted cable broadcasts. See 

Aereo, 573 U.S. at 433. But the Court did not rely on user 

perception alone to determine whether Aereo performed. 

See id. The Court has not converted user perception into a 

separate and independent rule of decision.

Furthermore, Aereo’s discussion of user perception is 

consistent with our pre-Perfect 10 law regarding user 

perception. In N.Y. Times Co. v. Tasini, authors who 

provided articles to newspapers and magazines sued the 

publishers when these articles were subsequently published 

in online databases. 533 U.S. 483 (2001). The Court held 

that the fact that “the Articles [were] presented to, and 

perceptible by, the user of the Databases” was important to 

“determining whether the Articles have been reproduced and 

distributed ‘as part of’ . . . the collective works.” Id. at 499. 

The Court’s statement in Tasini is unremarkable, however. 

In any “display” covered by the Copyright Act, the work 

must be “perceptible” to the user. See 17 U.S.C. § 101 

(“‘Copies’” are material objects . . . from which the work can 

be perceived”). Moreover, the Tasini court declined to 

resolve the different issue of public display. Id. at 498 n.8 

(“[w]e do not reach an issue the Register of Copyrights has 

argued vigorously. The Register maintains that the 

Databases publicly ‘display’ the Articles. . .”). This is not 

sufficient “intervening authority to cast doubt on this Court's 

prior authority.” Lair, 697 F.3d at 1207 (citations omitted). 

We were well aware of Tasini when we decided Perfect 10, 

and we have continued to read Tasini to be consistent with

Perfect 10. See Perfect 10, 508 F.3d at 1162 (discussing 

Tasini); see also ABS Ent., Inc. v. CBS Corp., 908 F.3d 405, 

422 (9th Cir. 2018) (“Tasini does not say that a mere 
32 HUNLEY V. INSTAGRAM, LLC

migration of a work into a new medium justifies an 

independent copyright.”); Giganews, 847 F.3d at 669 (Tasini

“does not establish that Giganews or Livewire directly 

violated Perfect 10’s distribution rights by selling access to 

infringing images on Giganews’s servers”)

Finally, Perfect 10 crafted our Server Test out of the 

Copyright Act’s fixation requirement—not the perceptibility 

requirement. See Perfect 10, 508 F.3d at 1160 (“A 

photographic image is a work that is ‘fixed in a tangible 

medium of expression,’ for purposes of the Copyright Act, 

when embodied (i.e., stored) in a computer's server (or hard 

disk, or other storage device).”). Perfect 10 did not scratch 

on a blank slate; it built on our prior caselaw interpreting the 

fixation requirement. See id. (“The image stored in the 

computer is the “copy” of the work for purposes of copyright 

law.”). Our caselaw regarding computerized copyright 

infringement relied on user perception in a limited 

circumstance: to determine whether copies were “fixed” 

under the Copyright Act. 17 U.S.C. § 101 (definition of 

“fixed”); see MAI Sys. Corp., 991 F.2d at 517–18. Because 

the public display right requires that an infringer “display a 

copy,” user perception is relevant to whether a copy is 

“fixed,” but not sufficient to establish direct infringement 

absent the underlying display of a fixed copy. See generally 

17 U.S.C. §101.

Considered together, our cases conclude that user 

perception is relevant to the fixation requirement—as 

mandated by the Copyright Act—but not determinative as to 

whether the display right has been infringed. Thus, the user 

perception analysis is not “clearly irreconcilable” with 

intervening authority. See Gammie, 335 F.3d at 893.
HUNLEY V. INSTAGRAM, LLC 33

C. Policy Concerns

Hunley, Instagram, and their amici have peppered us 

with policy reasons to uphold or overturn the Server Test. 

Their concerns are serious and well argued. Hunley argues 

that the Server Test allows embedders to circumvent the 

rights of copyright holders. Amici for Hunley argue that the 

Server Test is a bad policy judgment because it destroys the 

licensing market for photographers. On the other hand, 

amici for Instagram argue that embedding is a necessary part 

of the open internet that promotes innovation. As citizens 

and internet users, we too are concerned with the various 

tensions in the law and the implications of our decisions, but 

we are not the policymakers. 

If Hunley disagrees with our legal interpretation—either 

because our reading of Perfect 10 is wrong or because 

Perfect 10 itself was wrongly decided—Hunley can petition 

for en banc review to correct our mistakes. But we have no 

right “to judge the validity of those [] claims or to foresee 

the path of future technological development.” Aereo, 573 

U.S. at 463 (Scalia, J., dissenting). Most obviously, Hunley 

can seek further review in the Supreme Court or legislative 

clarification in Congress. 

Finally, we note that the Server Test applies only to 

embedding in its current technological format, which 

involves a single host server storing and transmitting an 

image, with an embedding website that directs the browser 

to retrieve and display that same underlying image from the 

host server. Perfect 10 does not foreclose other avenues to 

relief for future technologies that configure retransmission 

in a new way. We cannot foreclose the possibility that some 

future panel may conclude that there are ways to display a 

copy other than to store it on a server. But it is not our role 
34 HUNLEY V. INSTAGRAM, LLC

to craft a policy solution and rewrite the law to our tastes. 

We can only apply the law as it currently exists. 

D. Application of the Server Test to Hunley

Having rejected Hunley’s legal and policy challenges to 

Perfect 10, we now apply the Server Test to the facts of this 

case. 

By posting photographs to her public Instagram profile, 

Hunley stored a copy of those images on Instagram’s 

servers. By displaying Hunley’s images, Instagram did not 

directly infringe Hunley’s exclusive display right because 

Instagram had a nonexclusive sublicense to display these 

photos. 

To assert secondary liability claims against Instagram, 

Hunley must make the threshold showing “that there has 

been direct infringement by third parties.” Oracle Am., Inc., 

971 F.3d at 1050. Time and BuzzFeed wrote the HTML 

instructions that caused browsers to show Hunley and 

Brauer’s photographs on Time and BuzzFeed websites. 

However, under Perfect 10 these instructions did not 

constitute “display [of] a copy.” See Perfect 10, 508 F.3d at 

1160–61. Rather, Instagram displayed a copy of the 

copyrighted works Hunley posted on its platform, and the 

web browser formatted and displayed the images alongside 

additional content from Time and BuzzFeed. Because 

BuzzFeed and Time embedded—but did not store—the 

underlying copyrighted photographs, they are not guilty of 

direct infringement. See Perfect 10, 508 F.3d at 1160–61. 

Without direct infringement, Hunley cannot prevail on any 

theory of secondary liability. See Giganews, 847 F.3d at 

671. As a result, Instagram is not secondarily liable (under 

any theory) for the resulting display. The district court did 

not err in dismissing this case on the basis of the Server Test. 
HUNLEY V. INSTAGRAM, LLC 35

IV. CONCLUSION

For the foregoing reasons, we find no error in the 

judgment of the district court. 

AFFIRMED.