4 ms·

Would any court let a company deliberately provide something for free and then later let them sue you for using it?

• mdasen 5y ago
  It wouldn't be Instagram suing you. It would be the owner of the photo that uploaded it to Instagram. By uploading it to Instagram, they're granting Instagram a license, but they aren't granting you a license. People can still claim copyright over the images they've uploaded to Instagram. Instagram has the right to sublicense content that has been uploaded, but they've explicitly said that they aren't doing that.
  • Nextgrid 5y ago
    It can be argued that by uploading the photo to a public website they have granted everyone a license to instruct computers to display that photo (that's literally what embeds do)? Also, since Instagram has an embed feature, surely they have something in their ToS that ask the user to grant a license to Instagram to display the content not just on the main website but on any website that embeds the Instagram-hosted content?
• cxr 5y ago
  Your intuition about fairness matches a principle recognized by courts. The term for the applicable legal doctrine here is "estoppel". There's a strong argument to be made that if Instagram didn't make its (fairly unorthodox) position on embeds clear beforehand, then Newsweek's original use was reasonable and non-infringing (but not something that it can rely on indefinitely, esp. after Newsweek was notified that it did not have permission). There's another argument to be made, though, that the absence of an explicit prohibition is not necessary, due to copyright being an automatic negative right—that the burden is on Newsweek to obtain a clear license, not on anyone else to do any work explaining to Newsweek that it can't use it. This is a strong, argument, too, but probably weaker than the argument from estoppel.