EFF to Court: Don't Make Embedding Illegal

"Under the server test, whomever controls the server that hosts a copyrighted work-and therefore determines who has access to what and how-can be directly liable if that content turns out to be infringing. Anyone else who merely links to it can be secondarily liable in some circumstances (for example, if that third party promotes the infringement), but isn't on the hook under most circumstances."

"A user that links to a picture, video, or article isn't in charge of transmitting that content to the world, nor are they in a good position to know whether that content violates copyright. In fact, the user doesn't even control what's located on the other end of the link-the person that controls the server can change what's on it at any time, such as swapping in different images, re-editing a video or rewriting an article."

"But a news publisher, Emmerich Newspapers, wants the Fifth Circuit to reject the server test, arguing that the entity that embeds links to the content is responsible for "displaying" it and, therefore, can be directly liable if the content turns out to be infringing. If they are right, the common act of embedding is a legally fraught activity and a trap for the unwary."

The server test has governed online infringement liability for nearly two decades, establishing that the entity controlling the server hosting copyrighted content bears direct responsibility for infringement. This principle parallels analog-world norms where directing others to view content doesn't create direct liability. Users embedding links lack control over hosted content and cannot easily verify copyright compliance, as server operators can modify content at any time. A news publisher challenges this framework, arguing that embedding links constitutes "displaying" content and should trigger direct liability. Rejecting the server test risks destabilizing fundamental online activities and creating legal uncertainty for common embedding practices.

Read at Electronic Frontier Foundation