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`Case: 22-15293, 09/21/2023, ID: 12796849, DktEntry: 69, Page 1 of 24
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`No. 22-15293
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`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`ALEXIS HUNLEY; MATTHEW SCOTT BRAUER, individually and on behalf of all others
`similarly situated,
`Plaintiff-Appellants,
`
`
`
`v.
`INSTAGRAM, LLC,
`Defendant-Appellee.
`
`
`
`
`Appeal from the United States District Court for the District of Northern California,
`San Francisco, No. 3:21-cv-03778-CRB, Hon. Charles R. Breyer
`
`
`
`
`
`INSTAGRAM, LLC’S RESPONSE TO PLAINTIFFS-APPELLANTS’
`PETITION FOR REHEARING EN BANC
`
`
`
`LENA H. HUGHES
`MORRISON & FOERSTER LLP
`250 W. 55th Street
`New York, NY 10019
`
`
`
`JOSEPH GRATZ
`JAMES R. SIGEL
`ANNIE A. LEE
`MORRISON & FOERSTER LLP
`425 Market Street
`San Francisco, CA 94105
`Tel: (415) 268-6066
`JGratz@mofo.com
`
`ALLYSON R. BENNETT
`MORRISON AND FOERSTER, LLP
`707 Wilshire Boulevard
`Los Angeles, CA 90017
`
`Counsel for Defendant-Appellee Instagram, LLC
`SEPTEMBER 21, 2023
`
`
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`TABLE OF CONTENTS
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`C.
`
`TABLE OF AUTHORITIES ................................................................................... ii
`INTRODUCTION .................................................................................................... 1
`BACKGROUND ...................................................................................................... 2
`A.
`The Copyright Act ................................................................................ 2
`B.
`Factual Background .............................................................................. 3
`1.
`Embedding allows one website to direct browsers to the
`content of a second website ....................................................... 3
`Time and BuzzFeed embed plaintiffs’ Instagram posts ............. 4
`2.
`Procedural History ................................................................................ 5
`1.
`The district court dismisses plaintiffs’ complaint ...................... 5
`2.
`The Panel applies Perfect 10 and affirms the district
`court’s decision .......................................................................... 7
`REASONS THE PETITION SHOULD BE DENIED ............................................. 8
`A.
`The Panel’s Decision and Perfect 10 Are Correct ............................... 8
`1.
`The Panel correctly applied Perfect 10 ...................................... 8
`2.
`Perfect 10 applied the plain language of the Copyright
`Act ............................................................................................ 10
`a.
`An embedding website does not publicly display
`the copyrighted work ..................................................... 10
`Plaintiffs’ counterarguments are meritless .................... 12
`b.
`The Petition Does Not Merit En Banc Review .................................. 13
`B.
`CONCLUSION ....................................................................................................... 18
`
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`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`American Broadcasting Companies v. Aereo,
`573 U.S. 431 (2014) ............................................................................................ 14
`Bell v. Wilmott Storage Servs., LLC,
`12 F.4th 1065 (9th Cir. 2021) ............................................................................... 9
`Clark v. Martinez,
`543 U.S. 371 (2005) ............................................................................................ 15
`Evox Prods., LLC v. Verizon Media, Inc.,
`No. 21-56046, 2022 WL 17430309 (9th Cir. Dec. 6, 2022) ................................ 9
`Flava Works, Inc. v. Gunter,
`689 F.3d 754 (7th Cir. 2012) .............................................................................. 14
`Fox Broad. Co. v. Dish Network LLC,
`747 F.3d 1060 (9th Cir. 2014) .......................................................................... 3, 9
`Hunley v. BuzzFeed, Inc.,
`No. 1:20-cv-08844, 2021 WL 4482101 (S.D.N.Y. Sept. 30, 2021) ..................... 9
`Luvdarts, LLC v. AT&T Mobility, LLC,
`710 F.3d 1068 (9th Cir. 2013) .............................................................................. 3
`MAI Systems Corp. v. Peak Computer, Inc.,
`991 F.2d 511 (9th Cir. 1993) ........................................................................ 11, 12
`Perfect 10, Inc. v. Amazon.com, Inc.,
`508 F.3d 1146 (9th Cir. 2007) ................................... 1, 6, 7, 8, 10, 11, 12, 13, 16
`Perfect 10, Inc. v. Google, Inc.,
`653 F.3d 976 (9th Cir. 2011) ................................................................................ 9
`Silvers v. Sony Pictures Ent., Inc.,
`402 F.3d 881 (9th Cir. 2005) .............................................................................. 17
`Sony Corp. v. Universal City Studios, Inc.,
`464 U.S. 417 (1984) ........................................................................................ 3, 18
`
`
`
`ii
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`Statutes
`17 U.S.C. § 101 ................................................................................2, 3, 6, 10, 11, 12
`17 U.S.C. § 106(5) ........................................................................................... 2, 6, 10
`Other Authorities
`Fed. R. App. P. 35(a) ............................................................................................... 14
`Fed. R. App. P. 35(b) ......................................................................................... 14, 15
`Instagram, Introducing Better Previews of Your Content, Outside of
`Instagram,
`https://about.instagram.com/blog/announcements/introducing-
`better-previews-of-your-content-outside-of-instagram
`(Dec. 17, 2021) ................................................................................................... 17
`R. Anthony Reese, The Public Display Right: The Copyright Act’s
`Neglected Solution to the Controversy Over RAM “Copies,”
`2001 U. ILL. L. REV. 83 (2001) ........................................................................... 13
`
`
`
`
`
`
`
`
`iii
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`INTRODUCTION
`The Panel’s decision involves a straightforward application of this Court’s
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`precedent interpreting the plain language of the Copyright Act. In Perfect 10, Inc.
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`v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007), this Court held that a website
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`that merely provides instructions for a browser to find an image that a different
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`website stores and transmits (a process known as “embedding”) has not itself directly
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`infringed the copyright holder’s right to publicly display that image. This Court’s
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`decision relied on a careful reading of the Copyright Act and built on pre-existing
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`caselaw from this Court. It placed no weight on the fact that the defendant in Perfect
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`10—Google—happened to be a search engine.
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`In the decision here, the Panel said the obvious: Perfect 10 is not limited to
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`search engines. It applies to any website that “embeds” images from other websites
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`but does not store them.
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`There is no reason to rehear this case en banc. Perfect 10 and the Panel’s
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`application of it are correct, and no conflict exists with Supreme Court precedent,
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`other decisions of this Court, or any other circuit authority. Nor does this case
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`present a question of exceptional importance. It involves a discrete question about
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`direct infringement liability for a specific way of causing images to appear in a user’s
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`web browser. Plaintiffs’ proposal to create a bespoke Copyright Act that applies
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`differently to search engines than it does to other websites should be directed to
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`Congress, not this Court.
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`BACKGROUND
`A. The Copyright Act
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`“The Copyright Act grants authors the exclusive right ‘to display the
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`copyrighted work publicly.’” Slip Op. at 15 (quoting 17 U.S.C. § 106(5)). To
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`directly infringe this right, an infringer must both (1) display the work; and (2) do
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`so publicly. 17 U.S.C. § 106(5).
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`An infringer “display[s]” a copyrighted work when it “show[s] a copy” of the
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`work. 17 U.S.C. § 101. “Copies” are “material objects . . . in which a work is fixed
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`. . . .” Id. A “work is ‘fixed’ in a tangible medium of expression when its
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`embodiment in a copy . . . is sufficiently permanent or stable to permit it to be
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`perceived, reproduced, or otherwise communicated for a period of more than
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`transitory duration.” Id.
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`To perform or display a work “publicly” means:
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`(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.
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`2
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`17 U.S.C. § 101. “Part (2) of this definition is known as the Transmit Clause.” Slip
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`Op. at 16. “[A]n internet communication of an image necessarily implicates the
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`Transmit Clause.” Id. at 17.
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`
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`The Copyright Act also
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`imposes secondary
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`liability for copyright
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`infringement. Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 435 (1984).
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`A person can be secondarily liable for inducing, contributing to, or being vicariously
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`liable for another’s direct infringement. Luvdarts, LLC v. AT&T Mobility, LLC, 710
`
`F.3d 1068, 1071 (9th Cir. 2013). But “[s]econdary liability for copyright
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`infringement does not exist in the absence of direct infringement by a third party.”
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`Fox Broad. Co. v. Dish Network LLC, 747 F.3d 1060, 1068 (9th Cir. 2014).
`
`B.
`
`Factual Background
`
`1.
`
`Embedding allows one website to direct browsers to the content
`of a second website
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`Defendant-Appellee Instagram is a “social media platform where users share
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`photo and video content to their followers.” Slip Op. at 5. “Users with public
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`profiles grant Instagram a royalty-free sublicense to display their photos.” Id.
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`“Instagram’s infrastructure also allows third-party websites to ‘embed’ public
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`Instagram posts.” Id. Instagram profiles can also be private, and posts by such
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`accounts cannot be embedded. 1-ER-17 ¶ 39, 1-ER-27-28 ¶ 59.1
`
`
`1 Citations to __-ER-__ are to the excerpts of record.
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`3
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`Embedding “is a method that allows a third-party website (the embedding
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`website) to incorporate content directly from the website where it originally
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`appeared (the host website).” Slip Op. at 5. Websites are created using textual
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`instructions written in Hypertext Markup Language (“HTML”). Id. With
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`embedding, a website creator uses HTML instructions to direct the user’s browser
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`to retrieve and display an image that is not stored on the embedding website’s server,
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`but instead comes from an outside website. Id. at 6. “When the browser follows
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`these HTML instructions, the browser will retrieve the image, caption, and
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`formatting from the host website and display all these elements alongside content
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`from the embedding website.” Id. at 7. In other words, the snippet of embed code
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`causes the viewer’s browser to load a separate Instagram webpage, containing the
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`embedded Instagram post, in a box located on the embedding website’s page.
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`Because embedding websites do not store embedded images, they do not
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`control their transmission; the host websites do. Slip Op. at 8-9. Host websites can
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`refuse to respond to embedding or limit the embedding websites they will respond
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`to. Id. at 9. Host websites can also delete or change the image to which the embed
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`link directs the browser. Id.
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`2.
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`Time and BuzzFeed embed plaintiffs’ Instagram posts
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`Plaintiffs-Appellants Hunley and Brauer are photographers who have public
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`Instagram accounts where they post some of their photography. Slip Op. at 9. Both
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`4
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`agreed to grant Instagram a nonexclusive license to publicly reproduce and display
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`the content they upload and post. 1-ER-29 ¶ 65.
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`Time and BuzzFeed News are online news platforms. Slip Op. at 9. In January
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`2016, Time allegedly embedded an Instagram post from Brauer that featured a
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`copyrighted photograph of Hillary Clinton. Id. at 11-12. Similarly, in June 2020,
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`BuzzFeed News allegedly embedded an Instagram post from Hunley that included a
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`copyrighted photograph of the Black Lives Matter protests. Id. at 9-11. Although
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`the viewers’ browsers allegedly showed the posts in the context of the Time or
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`BuzzFeed webpages, the embedded Instagram posts—and the photographs therein—
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`were hosted on and transmitted by Instagram’s servers, not Time or BuzzFeed’s. 1-
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`ER-25-26 ¶ 53; 1-ER-27 ¶ 58.
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`C.
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`Procedural History
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`1.
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`The district court dismisses plaintiffs’ complaint
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`In May 2021, plaintiffs sued Instagram for secondary liability for copyright
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`infringement for enabling Time and BuzzFeed to embed plaintiffs’ Instagram posts.
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`Slip Op. at 13. Given Instagram’s license to reproduce and display plaintiffs’
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`Instagram posts, plaintiffs did not allege that Instagram directly infringed plaintiffs’
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`copyrights. Id. Nor did they dispute that for Instagram to be secondarily liable,
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`Time and BuzzFeed must have directly infringed plaintiffs’ copyrights. Id. Instead,
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`plaintiffs alleged that Time and BuzzFeed directly infringed plaintiffs’ right to
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`5
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`publicly display their copyrighted works (17 U.S.C. § 106(5)) and that Instagram
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`was secondarily liable for enabling that infringement. Slip Op. at 13.
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`The district court granted Instagram’s motion to dismiss plaintiffs’ claims for
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`failure to state a claim. 1-ER-107-111. In doing so, the court applied the so-called
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`“Server Test” set forth by this Court in Perfect 10.
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`In Perfect 10, the plaintiff alleged that Google directly infringed its display
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`rights both by transmitting copies of plaintiff’s photos stored on Google’s own server
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`and by embedding the plaintiff’s photos on other websites via Google’s image
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`search. 508 F.3d at 1157. Perfect 10 held that the plaintiff made a prima facie case
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`that Google infringed plaintiff’s display right with respect to images stored on
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`Google’s server, but not with respect to images it embedded. Id. at 1160-62. This
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`Court explained that violation of the public display right requires the infringer to
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`“show a copy” of the work, which must be “fixed” in a “material object[],” such that
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`it is “sufficiently permanent or stable to permit it to be perceived, reproduced, or
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`otherwise communicated for a period of more than transitory duration.” Id. at 1160
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`(quoting 17 U.S.C. § 101). Google presumptively infringed this right when it
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`transmitted copies of works that were stored—and thus fixed—in its own server. Id.
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`But because Google did not store a copy of the embedded works on its server,
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`“Google does not have a copy of the images for purposes of the Copyright Act.” Id.
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`Without a copy, Google neither “display[ed]” the embedded works nor did so
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`6
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`“publicly” because Google’s embedding merely “provide[d] HTML instructions that
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`direct a user’s browser to a website publisher’s computer that stores the full-size
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`photographic image.” Id. at 1161 & n.7.
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`Because Perfect 10’s reasoning applied equally to Time and BuzzFeed’s
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`alleged embedding, the district court here concluded that Time and BuzzFeed had
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`not directly infringed plaintiffs’ display rights. 1-ER-109. And because Time and
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`BuzzFeed had not committed direct infringement, Instagram could not be
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`secondarily liable. 1-ER-108.
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`2.
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`The Panel applies Perfect 10 and affirms the district court’s
`decision
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`Applying this Court’s precedents and the “plain language” of the Copyright
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`Act, a Panel of this Court affirmed. Slip Op. at 20. The Panel rejected plaintiffs’
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`argument that Perfect 10 should be limited to search engines. Perfect 10’s holding
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`“did not rely on the unique context of a search engine,” but instead “relied on the
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`‘plain language’ of the Copyright Act and [this Court’s] own precedent describing
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`when a copy is ‘fixed’ in a tangible medium of expression.” Id. Applying the
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`Copyright Act’s “fixation requirement to the internet infrastructure, [Perfect 10]
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`concluded that in the embedding context, a website must store the image on its own
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`server to directly infringe the public display right.” Id. That conclusion, the Panel
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`held, was fully applicable here. Id.
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`7
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`REASONS THE PETITION SHOULD BE DENIED
`A. The Panel’s Decision and Perfect 10 Are Correct
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`Plaintiffs ask this Court to grant rehearing en banc to reconsider the Panel’s
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`application of Perfect 10 outside the search engine context. Pet. 2. But the Panel’s
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`decision is a straightforward application of Perfect 10. And Perfect 10 itself, which
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`Plaintiffs do not appear to directly challenge, applied the plain language of the
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`Copyright Act. Rehearing en banc is thus unnecessary and should be denied.
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`1.
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`The Panel correctly applied Perfect 10
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`Plaintiffs challenge the Panel’s decision to apply Perfect 10 “outside of the
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`search engine context.” Pet. 12. That challenge is meritless.
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`As the Panel explained, Perfect 10 “did not rely on the unique context of a
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`search engine;” it “relied on the ‘plain language’ of the Copyright Act and [this
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`Court’s] precedent describing when a copy is ‘fixed’ in a tangible medium of
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`expression.” Slip Op. at 20. In particular, Perfect 10 held that an embedding website
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`that merely “provides HTML instructions that direct a user’s browser to a website
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`publisher’s computer that stores the full-size photographic image” is neither
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`“showing a copy” nor “transmit[ting] or otherwise communicat[ing] a display” as
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`the Copyright Act’s public display right requires. 508 F.3d at 1161 & n.7. Nothing
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`in the relevant statutory language, or Perfect 10’s reading of it, distinguishes a search
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`engine from any other type of website. Indeed, plaintiffs do not argue otherwise.
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`8
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`The Panel also was not the first to apply Perfect 10 outside the search engine
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`context. Slip op. at 20-21. This Court had already done so for blogs, online bulletin
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`boards, and a storage-service website. Id. (citing Bell v. Wilmott Storage Servs.,
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`LLC, 12 F.4th 1065, 1073 (9th Cir. 2021); Perfect 10, Inc. v. Google, Inc., 653 F.3d
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`976, 978 (9th Cir. 2011); Evox Prods., LLC v. Verizon Media, Inc., No. 21-56046,
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`2022 WL 17430309, at *1-2 (9th Cir. Dec. 6, 2022) (unpublished)). The Panel’s
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`decision, which did the same for online news platforms, breaks no new ground.
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`Plaintiffs nonetheless insist this case is different because it involves “whether
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`secondary liability lies against Instagram,” not whether the embedding websites
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`directly infringed copyright. Pet. 5 (emphasis omitted). But “[s]econdary liability
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`for copyright infringement does not exist in the absence of direct infringement by a
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`third party.” Fox Broad. Co., 747 F.3d at 1068. Because Time and BuzzFeed did
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`not directly infringe the public display right, Instagram cannot be secondarily liable.2
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`Plaintiffs are also wrong that the Panel’s decision to apply Perfect 10 leads to
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`“absurd results.” Pet. 11. Plaintiffs argue that if embedding does not violate the
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`Copyright Act’s public display right, then embedding photos with defamatory
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`2 Plaintiffs argue that a New York district court decision denying a motion to dismiss
`Hunley’s direct infringement claim against BuzzFeed creates a “conundrum” this
`Court should resolve. Pet. 15. There is no conundrum. That interlocutory district
`court decision addressed fair use, not the public display question presented here.
`Hunley v. BuzzFeed, Inc., No. 1:20-cv-08844, 2021 WL 4482101, at *2-4 (S.D.N.Y.
`Sept. 30, 2021). In any event, it was neither binding on the panel, nor preclusive
`against Instagram.
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`9
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`messages, misleading advertisements, or private material will not do so either. Id.
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`There is nothing absurd about that: Copyright law does not redress defamation, false
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`advertising, and invasion of privacy. Nothing in Perfect 10 or the Panel’s decision,
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`which merely construe the public display right under the Copyright Act, says
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`anything about when or how an embedding website could commit these separate
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`common-law or statutory torts.
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`2.
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`Perfect 10 applied the plain language of the Copyright Act
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`Plaintiffs do not directly challenge this Court’s decision in Perfect 10, instead
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`arguing that “[t]he question of whether the Server Test should be limited in its
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`application to search engines ought to be considered by an en banc panel of this
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`Court.” Pet. 9. To the extent plaintiffs question Perfect 10, their arguments fail.
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`a.
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`An embedding website does not publicly display the
`copyrighted work
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`Perfect 10 correctly applied the Copyright Act to conclude that embedding
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`does not directly infringe the public display right. As Perfect 10 explained, the
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`Copyright Act protects a copyright owner’s “exclusive right ‘to display the
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`copyrighted work publicly.’” 508 F.3d at 1160 (quoting 17 U.S.C. § 106(5)). To
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`display means “to show a copy of [the work.]” 17 U.S.C. § 101. A “cop[y]” must
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`be “fixed” in a “material object,” which requires that the work’s “embodiment” be
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`“sufficiently permanent or stable to permit it to be perceived, reproduced, or
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`otherwise communicated for a period of more than transitory duration.” Id. And to
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`10
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`constitute a public display, an internet transmission must “transmit or otherwise
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`communicate . . . a display . . . to the public.” Id.
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`Embedding does not meet these definitions. “Because Google’s computers
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`do not store the photographic images, Google [did] not have a copy of the images
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`for purposes of the Copyright Act.” Perfect 10, 508 F.3d at 1160. And so what
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`Google “show[ed]” with embedding was not “a copy of the image,” but merely
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`“HTML instructions that direct a user’s browser to a website publisher’s computer
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`that stores the full-size photographic image.” Id. at 1161. “[T]he HTML instructions
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`are lines of text, not a photographic image” and “do not themselves cause infringing
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`images to appear on the user’s computer screen.” Id. Google also did not “publicly”
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`display the embedded images because Google “transmit[ed] or communicate[d] only
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`an address which directs a user’s browser to the location where a copy of the full-
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`size image is displayed;” it did “not communicate a display of the work itself.” Id.
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`at 1161 n.7.
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`“Perfect 10 did not scratch on a blank slate; it built on [this Court’s] prior
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`caselaw interpreting the [Copyright Act’s] fixation requirement,” including MAI
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`Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993). Slip Op. at 32.
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`In MAI, this Court explained that copyrighted software is “fixed” where it is loaded
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`into the computer’s random access memory because such storage made the work
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`“sufficiently permanent or stable to permit it to be perceived, reproduced, or
`
`11
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`otherwise communicated for a period of more than transitory duration.” 991 F.2d at
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`518 (quoting 17 U.S.C. § 101).
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`Perfect 10 also followed from this Court’s precedent holding “that
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`infringement under the Copyright Act requires proof of volitional conduct, the
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`Copyright Act’s version of proximate cause.” Slip Op. at 28. As Perfect 10 explains,
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`embedding websites merely provide “HTML instructions” and “HTML instructions
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`do not themselves cause infringing images to appear on the user’s computer screen.”
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`Perfect 10, 508 F.3d at 1161. “The HTML merely gives the address of the image to
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`the user’s browser,” “the browser then interacts with the computer that stores the
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`infringing image,” and “[i]t is this interaction that causes an infringing image to
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`appear on the user’s computer screen.” Id.
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`b.
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`Plaintiffs’ counterarguments are meritless
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`Plaintiffs never address any of the textual or precedential support for Perfect
`
`10. Instead, Plaintiffs suggest that Perfect 10’s interpretation of the Copyright Act
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`is wrong because it renders the public display and reproduction rights redundant.
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`Pet. 13. Plaintiffs are incorrect.
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`Neither Perfect 10 nor the Panel’s decision holds that an infringer must violate
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`the reproduction right to infringe the public display right. Both decisions simply
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`hold that in the context of embedding, an embedding website that does not store a
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`copy on its server, but instead merely provides HTML instructions, has neither
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`12
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`shown a copy, nor transmitted or otherwise communicated a display of a copy as the
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`Copyright Act requires. Perfect 10, 508 F.3d at 1161 (“Instead of communicating a
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`copy of the image, Google provides HTML instructions . . . .”). Neither decision
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`addresses public displays outside of the internet context. And even within the
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`internet context, the decisions address only “embedding in its current technological
`
`format.” Slip Op. at 33. “Perfect 10 does not foreclose other avenues to relief for
`
`future technologies that configure retransmission in a new way” or “the possibility
`
`that some future panel may conclude that there are ways to display a copy other than
`
`to store it on a server.” Id. It may well be that there are ways to publicly display a
`
`work without possessing a copy, but embedding is not one of them.
`
`Regardless, even if violating the public display right always required an
`
`antecedent violation of the reproduction right, that would not render the rights
`
`redundant. By violating both rights an infringer may give rise to additional
`
`remedies, renew the statute of limitations, or create personal jurisdiction.
`
`R. Anthony Reese, The Public Display Right: The Copyright Act’s Neglected
`
`Solution to the Controversy Over RAM “Copies,” 2001 U. ILL. L. REV. 83, 111-13
`
`(2001). Perfect 10’s interpretation thus creates no Copyright Act redundancies.
`
`B.
`
`The Petition Does Not Merit En Banc Review
`
`The petition should also be denied because it does not meet the exacting
`
`standards for en banc review. En banc review will be granted only where necessary
`
`13
`
`
`
`Case: 22-15293, 09/21/2023, ID: 12796849, DktEntry: 69, Page 18 of 24
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`to “secure or maintain uniformity of the court’s decisions” or in cases involving
`
`questions of “exceptional importance.” Fed. R. App. P. 35(a). Plaintiffs’ petition
`
`does not meet either requirement.
`
`Plaintiffs do not argue that the Panel’s decision “conflicts with” a decision of
`
`the “Supreme Court,” this Court, or any of the other “Courts of Appeals.” Fed. R.
`
`App. P. 35(b)(1)(A)-(B). Indeed, no circuit court has rejected Perfect 10, and the
`
`Seventh Circuit has applied reasoning that mimics it. Slip Op. at 22-23; Flava
`
`Works, Inc. v. Gunter, 689 F.3d 754, 761 (7th Cir. 2012). Before the Panel, plaintiffs
`
`argued that Perfect 10 contravenes the Supreme Court’s decision in American
`
`Broadcasting Companies v. Aereo, 573 U.S. 431 (2014). Plaintiffs do not renew
`
`that argument here. And, as the Panel explained, Perfect 10 does not conflict with
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`Aereo because, among other reasons, Aereo addressed the public performance
`
`right—a right that does not require public display of a copy. Slip Op. at 25-32.
`
`Nor is review necessary to maintain uniformity in this Court’s decisions. Just
`
`the opposite. Overruling Perfect 10 would fracture this Court’s copyright case law
`
`because Perfect 10 “built on [this Court’s] prior caselaw interpreting the [Copyright
`
`Act’s] fixation requirement” and “was bound to apply [this Court’s] volitional-
`
`conduct analysis,” which requires “that the infringer be the direct cause of the
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`infringement.” Slip Op. at 29, 32.
`
`14
`
`
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`Case: 22-15293, 09/21/2023, ID: 12796849, DktEntry: 69, Page 19 of 24
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`The Panel’s conclusion that Perfect 10’s holding applies even when the
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`embedding website is not a search engine is also unexceptional—indeed, it is
`
`inescapable. Perfect 10 relied not on Google’s status as a search engine, but on the
`
`plain language of the Copyright Act’s public display right. That right does not
`
`distinguish between the types of websites displaying copyrighted works. There is
`
`no available construction of the statute under which an embedding search engine has
`
`not publicly displayed a copyrighted work, but an embedding news platform has.
`
`Accepting plaintiffs’ argument to keep Perfect 10 but limit it to embedding search
`
`engines would require courts to interpret the same language in the Copyright Act
`
`differently depending on the nature of the embedding website involved. See Clark
`
`v. Martinez, 543 U.S. 371, 378 (2005) (“To give the[] same words a different
`
`meaning for each category would be to invent a statute rather than interpret one.”).
`
`Plaintiffs observe that some district courts have either rejected Perfect 10 or
`
`declined to apply it outside the search engine context. Pet. 12. But conflicts with
`
`district court cases do not warrant en banc review. Fed. R. App. P. 35(b). No court
`
`of appeals has endorsed the view of those decisions. Slip Op. at 23. And because
`
`that view is at odds with the plain language of the Copyright Act (supra pp. 10-13),
`
`none is likely to do so.
`
`Plaintiffs’ ultimate argument for en banc review is that application of the
`
`Server Test outside the search engine context is an issue of “exceptional
`
`15
`
`
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`Case: 22-15293, 09/21/2023, ID: 12796849, DktEntry: 69, Page 20 of 24
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`importance.” Pet. 6. It is not. Both Perfect 10 and the Panel’s decision address only
`
`the narrow issue of direct copyright infringement liability for the practice of
`
`“embedding” in its “current technological format.” Slip Op. at 33. Neither decision
`
`“foreclose[s] other avenues to relief for future technologies that configure
`
`retransmission in a new way” or “the possibility that some future panel may conclude
`
`that there are ways to display a copy other than to store it on a server.” Id. And
`
`under both decisions, copyright holders can still sue the host website for direct
`
`copyright infringement when the host website’s display is infringing, and they can
`
`still sue embedding websites for secondary liability when they are complicit in
`
`infringement. E.g., Perfect 10, 508 F.3d at 1161.
`
`Nor is the question addressed by Perfect 10 and the Panel’s decision “likely
`
`to recur” in any way that would require this Court’s intervention. Contra Pet. 8.
`
`Perfect 10’s rule is clear and easy to apply: The host website that stores and
`
`transmits the copyrighted image “displays” the work; the embedding website that
`
`merely provides HTML instructions about where to find the image does not.
`
`Plaintiffs’ argument that Perfect 10 deprives copyright holders of the
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`economic value of their works on the internet (Pet. 7) is mistaken and misdirected.
`
`As noted, the copyright owner can still sue the host website for infringing displays
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`and embedding websites that are complicit in them. Supra p. 16. These claims were
`
`unavailable to plaintiffs because plaintiffs granted Instagram a license to publicly
`
`16
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`
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`Case: 22-15293, 09/21/2023, ID: 12796849, DktEntry: 69, Page 21 of 24
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`display plaintiffs’ works, but they may well be available in other cases. And even
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`when the host website’s display is authorized, copyright holders still have the means
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`to prevent embedding. They can post their content only on host websites that provide
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`technological means to prohibit embed
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