The Law and Business of Social Media
November 15, 2021 - Advertising, Class Actions, Big Data, Copyright

Social Links: Embedding social media posts can be considered copyright infringement…but is it?

Social Links is our ongoing series here at Socially Aware that rounds up current developments at the intersection of social media, policy, research, and the law.

Embedding social media posts can be considered copyright infringement…but is it?

A Manhattan federal judge ruled in August 2021 that the practice of embedding social media posts on third-party websites, without permission from the content owner, could violate the owner’s copyright.

The case centered around a 2017 video of a starving polar bear that nature photographer Paul Nicklen took and posted on his Instagram and Facebook accounts. Its purpose was to highlight the effects of global warming. When the image went viral, Sinclair Broadcasting Group published an article about it and embedded Nicklen’s post without obtaining his permission.

In reaching his decision, U.S. District Judge Jed Rakoff rejected the “server test” from the 9th Circuit Court of Appeals, which generally holds that embedding content from a third party’s social media account only violates the content owner’s copyright if a copy is stored on the defendant’s servers.

A recent decision on this very topic, however, reveals a different perspective on embedding practices and the “server test.” Reuters reports that a San Francisco federal court rejected a group of photographers’ claims that Instagram’s embedding tool infringed on their copyrights. Judge Charles Breyer of the U.S. District Court for the Northern District of California ruled that “the Instagram feature doesn’t violate the photographers’ exclusive right to display the pictures publicly because third-party websites that embed the images don’t store their own copies of them.” This decision is second in a series that rejects the “server test” cited above.

Photographers Alexis Hunley and Matthew Brauer led the class action complaint in May, followed by Instagram’s move to dismiss in July. According to Reuters, Judge Breyer noted that “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.”

These decisions will most likely end in appeals. We will continue to monitor the developments as they unfold.

Harnessing the wisdom – and skills – of the crowd to combat social media’s trust issues

Elections, COVID-19 vaccinations, Gabrielle Petito and Brian Laundrie’s disappearance, conspiracy theories about other missing persons: each represents a category that has cast social media platforms under intense scrutiny about their handling of the information – or misinformation – that is published and appears across the social media landscape.

While social media platforms employ fact checkers to validate the veracity of posts, the staggering volume of posts on any given day makes it impossible for them to employ enough people to confirm or reject every entry on every channel globally, 24/7. Scale, not to mention cost, remains the central issue.

A recent Wired article suggests that using the “wisdom of the crowds” – groups of lay people – often matches or surpasses the accuracy that professional fact checkers provide. In addition to cost savings, this model also offers something that professional fact checker programs do not: scalability.

These issues around trust and misinformation on social media platforms will continue to dominate headlines across technological, legal, and public opinion forums.

Social media algorithms result in surprising and unexpected moments for those grieving lost loved ones and friends

Many of us have experienced moments when social media serves up posts, memories, or birthday reminders of those who have passed. A recent Wired article explores the emotional and psychological effects of those on the receiving end of such social media notices. Particularly in the COVID-19 era, when many have experienced sudden losses of loved ones, friends, and family members, social media platforms have provided much-needed forums for those wanting to share news, information, tributes, memorials, and memories of those who have passed. Many of the major social media outlets have mechanisms and settings to help family members and friends manage their deceased loved ones’ accounts in respectful ways. Facebook offers both memorialized accounts and legacy contact settings; Instagram provides similar memorialization settings; and Twitter has processes in place to work with an authorized estate representative to deactivate an account. Google provides a similarly robust program, allowing individuals to designate “digital beneficiaries” who will act on their behalf to manage their accounts once they’ve passed.

While none of us wants to think about end-of-life directives, taking into consideration the digital footprint that we leave behind on social media as part of our legacy is another factor in the technological landscape where we live today.

Young people, social media, and emerging from COVID-19

Much has been written in the last 18 months about the effects that COVID-19 has had on all of us, but in particular, on the youth in the United States. Common Sense, Hopelab, and the California Healthcare Foundation published Coping with COVID-19: How Young People Use Digital Media to Manage Their Mental Health earlier this year. It examined how youth used social media and other online tools to cope with the separation and isolation from friends and other social structures that are vital to their intellectual, social, and emotional development.

While depression is on the rise among young people (as this infographic explains), there’s good news on the horizon. Recent analyses have noticed positive trends among young people with decreased levels of depression and cited two major factors that occurred during the pandemic: teens are getting more sleep, and they’re spending more time with family.

In addition, GLAAD (formerly known as the Gay and Lesbian Alliance Against Defamation) recently published its first-ever Social Media Safety Index report that examined social media platforms and LGBTQ+ youths’ involvement and usage. While the report cited an increase in hate speech and other hostile forums on social media, other analysts provided a more nuanced interpretation, citing that social media platforms provide a much-needed lifeline for LGBTQ+ youth as they seek information and support.