The past few weeks have been rough for Elliot Tebele. Tebele is the morally compromised founder of Jerry Media, a media firm founded in 2015 that is the outgrowth of an Instagram account called @fuckjerry. @fuckjerry is a “meme account,” shorthand for a social media account that screenshots funny tweets and freeboots (rips and reuploads) viral videos. To put it another way, @fuckjerry is an account that steals jokes and other content from other users and monetizes it. Instagram, the billion-dollar Facebook subsidiary, has been aware of the account for years and has done nothing to curb its theft of intellectual property.
Tebele is not alone: there are plenty of Instagram users, some with millions of followers, with the same M.O. They’ve taken what people have been doing for years — sharing funny pics online — and used Instagram’s long social media reach to turn that pastime into a business. Stealing jokes has been very lucrative for Tebele and these other accounts: they can make thousands of dollars off of a single sponsored post.
They can also parlay that into media ventures, like book publishing deals or TV projects. In 2015, Josh Ostrovsky, better known on Instagram as the Fat Jew, came under fire for similar behavior after he signed a deal with Comedy Central. Threatened by the backlash, Ostrovsky promised to attribute everything that he posted to its source in the future. (That source could be the content’s creator or it could be another account reposting it; who knows?) Tebele and other meme account admins instituted similar policies, and the controversy died down. (It was discovered, however, that in order to technically be in compliance with this new self-regulation, @fuckjerry would allegedly steal jokes and repost them on dummy Twitter accounts that @fuckjerry itself created.)
Now the controversy is back, fueled largely by Jerry Media’s role in promoting the disastrous Fyre Festival, and then profiting from a documentary on said disaster. The company was also called out by Vulture’s Megh Wright for hawking its stolen wares to Comedy Central, which subsequently pulled its ads from the account. Last week, The Atlantic reported that Jerry Media was selling some sort of collaboration with a photo of an egg (don’t ask) that is now the most-liked post on Instagram. Anyway, there are plenty of reasons to hate @fuckjerry (mine is that the account is so unoriginal that its aesthetic is literally that of a ’90s-era Dixie Cup). The company’s dubious past has come back to haunt it, as web comedians like Vic Berger and very famous people like John Mulaney are now encouraging people to unfollow the meme account.
In a statement, Tebele admitted that his company needs to do a lot better:
Effective immediately, we will no longer post content when we cannot identify the creator, and will require the original creator’s advanced consent before publishing their content to our followers. It is clear that attribution is no longer sufficient, so permission will become the new policy.
Setting aside the fact that Tebele had already been exposed for trying to avoid giving proper credit for the content he was profiting from, this policy should have been the default for a professional media operation — one that is not just some guy posting from his phone but a company cutting deals and producing Netflix movies and selling ad packages to Viacom.
Instagram, the Facebook–owned company where most of @fuckjerry’s theft occurs, has done virtually nothing to moderate this behavior. In fact, Instagram enables behavior like Tebele’s in a number of ways. The most glaring of these is that the platform does not allow users to embed hyperlinks in their posts; they can only tag other users’ Instagram handles. That poses a bit of a problem when most of FuckJerry’s content is culled from Twitter — or anywhere other than Instagram.
Also, Instagram has no native reshare function, something that almost every other major online platform has. Twitter has the retweet and the quote-tweet, Tumblr has the reblog, even Facebook has native resharing — all of these allow people to share the content of others without ripping it out of its original context. Despite having a wealth of data to support the fact that “regramming” is a widespread behavior on its service, Instagram has refused to implement a native function for this purpose, leaving it to third-party workarounds.
Most importantly, Instagram just straight-up pretends systematic IP infringement is not happening on its platform! Here is the very first rule on Instagram’s list of Community Guidelines:
Share only photos and videos that you’ve taken or have the right to share.
As always, you own the content you post on Instagram. Remember to post authentic content, and don’t post anything you’ve copied or collected from the Internet that you don’t have the right to post.
Every large online platform has some version of this policy, which is meant to indemnify the company from responsibility for copyright infringement. You already know this rule is toothless.
As far as I can tell, however, Instagram has never punished a major meme account for sharing content that was not “authentic.” During the holiday season late last year, many meme accounts were purged, but Instagram told The Atlantic that the purge was to punish people for selling or trading their accounts, not for content theft.
It has been more than three years since the Fat Jew was first called out for systematically stealing jokes. In that time, some meme accounts have instituted policies of self-regulation in which they promised to credit those they rip off, even if they don’t get permission to repost others’ work. Those policies still fall short of Instagram’s own. The policy that Tebele announced over the weekend — only posting things he gets permission to put up beforehand — is literally Instagram’s own official policy. Yet Instagram has, as far as I can tell, never taken substantial action against meme accounts like @fuckjerry. It’s possible that individual posts may have been taken down in accordance with Instagram’s rules, but Instagram has done nothing to regulate accounts that follow a clear pattern of violating intellectual property rights. Tebele’s mortal sin is not just a few slip-ups here and there when it comes to proper attribution: it is in systematizing an economy of theft over a period of years. In a way, Instagram meme accounts are a (very depressing) version of organized crime.
So why has Instagram turned a blind eye? It’s because accounts like @fuckjerry have millions of followers and drive engagement, the only metric that matters to Instagram. In addition, the messy, haphazard distribution of memes makes it difficult to claim ownership of them in strictly legal terms, thus making it difficult to ask Instagram to take action. Because memes and internet jokes are not corporate media properties like major motion pictures or albums, the legal exposure in this context is much, much lower. Viacom famously sued YouTube for not policing its site well enough; Kyle with a single viral tweet is not going to mount a comparable legal campaign against Instagram.
There is an argument — one I am relatively sympathetic to — which asserts that platforms on the scale of Instagram can’t possibly monitor themselves on their own, justifying the need for users and outside watchdogs (such as the media) to bring wrongdoing to their attention. That arrangement is, I think, fine enough, assuming that Instagram plays its part in it. But it has not been. Instagram should be well aware of how Tebele has operated for years, and its lack of any adequate response, at this point, should be considered willful. The people at Instagram know about widespread intellectual property infringement, and they are more than okay with it. After years of frustration and callouts from regular users and high-profile celebs, Instagram’s continuing failure to acknowledge and react to existing user behavior like Tebele’s is a choice.