from the the-server-test-is-important dept
Who should be directly liable for online infringement – the entity that serves it up or a user who embeds a link to it? For almost two decades, most U.S. courts have held that the former is responsible, applying a rule called the server test. 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.
The test just makes sense. In the analog world, a person is free to tell others where they may view a third party’s display of a copyrighted work, without being directly liable for infringement if that display turns out to be unlawful. The server test is the straightforward application of the same principle in the online context. 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 Court should decline, or risk destabilizing fundamental, and useful, online activities. As we explain in an amicus brief filed with several public interest and trade organizations, linking and embedding are not unusual, nefarious, or misleading practices. Rather, the ability to embed external content and code is a crucial design feature of internet architecture, responsible for many of the internet’s most useful functions. Millions of websites—including EFF’s—embed external content or code for everything from selecting fonts and streaming music to providing services like customer support and legal compliance. The server test provides legal certainty for internet users by assigning primary responsibility to the person with the best ability to prevent infringement. Emmerich’s approach, by contrast, invites legal chaos.
Emmerich also claims that altering a URL violates the Digital Millennium Copyright Act’s prohibition on changing or deleting copyright management information. If they are correct, using a link shortener could put users at risks of statutory penalties—an outcome Congress surely did not intend.
Both of these theories would make common internet activities legally risky and undermine copyright’s Constitutional purpose: to promote the creation of and access to knowledge. The district court recognized as much and we hope the appeals court agrees.
Reposted from the EFF’s Deeplinks blog.
Filed Under: 5th circuit, copyright, embedding, intermediary liability, liability, linking, server test
Companies: emmerich newspapers
Comments on “EFF To Court: Don’t Make Embedding Illegal”
Attacking linking to content/link-preview isn't new
Remember this?
I had doubts this is the more literal copyright edition of link tax.
Again, link and its previews merely fetch data from where the link is pointing. What you see on your browser does not mean the content is on the linking site’s server. It’s literally just HTML code that instructs your browser to fetch data to be able to be rendered at a certain URL. And even if the site stores such a copy (often a downsized resolution), that is given by the linked site voluntarily.
Your overall point is correct...
…as is your point about URL shorteners; I don’t see anything infringing about them.
However, URL shorteners are a worst practice in security and in privacy and in usability; nobody should use them, ever.
So, I post a link to perfectly legal content, months later the hosting server swaps that content for infringing content and suddenly I’m the criminal?
I become responsible for constantly checking every link I’ve ever created to ensure they stay non-infringing?
Skimming the case, this seems to be more than embedding links in good faith. Newsbreak seems to be using it to show actual content in bad faith; exactly the sort of situation secondary liability is meant for?
This feels like it depends heavily on how exactly it’s embedded. One can certainly embed content that is functionally displaying it.
Facts Only
The Electronic Frontier Foundation (EFF) filed an amicus brief in a U.S. Fifth Circuit case.
The case involves Emmerich Newspapers challenging the "server test," a legal rule determining liability for online copyright infringement.
The server test holds that the entity controlling the server hosting copyrighted content is directly liable for infringement.
Under the server test, users who link or embed content are generally not directly liable unless they promote infringement.
Emmerich Newspapers argues that embedding links constitutes "displaying" content and should make the embedder directly liable.
The EFF and other organizations argue that overturning the server test would disrupt fundamental internet functions.
Embedding is widely used for services like fonts, music streaming, and customer support.
Emmerich also claims that altering URLs (e.g., via link shorteners) violates the Digital Millennium Copyright Act.
The EFF argues that Congress did not intend for link shorteners to incur statutory penalties.
The district court previously ruled in favor of the server test.
Critics of Emmerich’s position raise concerns about retroactive liability for links to content that later becomes infringing.
The case is being heard in the Fifth Circuit Court of Appeals.
Executive Summary
The Electronic Frontier Foundation (EFF) is urging a U.S. appeals court to uphold the "server test," a legal principle that holds the entity hosting copyrighted content directly liable for infringement, rather than those who merely link or embed it. This test has been the standard for nearly two decades, ensuring that users who link to content aren’t automatically responsible for its legality. Emmerich Newspapers is challenging this rule, arguing that embedding links constitutes "displaying" content and should make the embedder directly liable. The EFF, alongside other organizations, warns that overturning the server test would destabilize fundamental internet functions, as embedding is a core feature of web architecture used for everything from fonts to customer support services. Additionally, Emmerich claims that altering URLs (e.g., via link shorteners) violates copyright management laws, which the EFF argues was not Congress’s intent. The district court previously sided with the server test, and the EFF hopes the Fifth Circuit will do the same. Critics of Emmerich’s position highlight concerns about retroactive liability—where a link to legal content could later become infringing—and the impracticality of constantly monitoring embedded links.
The debate centers on balancing copyright enforcement with the practical realities of internet use. While some argue that bad actors could exploit embedding to bypass copyright protections, others emphasize that the server test provides necessary legal clarity and protects everyday users from unintended liability.
Full Take
The strongest version of the EFF’s argument is that the server test is a pragmatic and fair rule that aligns with both analog-world principles and the technical realities of the internet. By placing liability on the entity controlling the server, it ensures accountability where it’s most effective—with those who have the power to remove or modify content. The EFF rightly highlights that embedding is a foundational feature of the web, enabling everything from social media previews to third-party services. Without the server test, everyday internet activities could become legally perilous, stifling innovation and free expression. The EFF also effectively counters Emmerich’s claim about URL shorteners, pointing out the absurdity of penalizing a tool that Congress never intended to regulate.
However, the debate isn’t without nuance. Emmerich’s argument taps into legitimate concerns about bad actors using embedding to bypass copyright protections. If a platform knowingly embeds infringing content to avoid hosting it directly, should it escape liability? The server test’s secondary liability provisions are meant to address this, but enforcement can be inconsistent. The EFF’s position assumes good faith on the part of embedders, but what about actors who exploit the system? The tension here reflects a broader struggle in copyright law: how to protect creators without chilling the open, interconnected nature of the internet.
Root cause: This dispute echoes historical battles over intermediary liability, from the VCR to Napster. The underlying paradigm is the clash between copyright enforcement and the decentralized, hyperlinked structure of the web. The server test is a compromise that preserves the internet’s functionality while assigning responsibility to those best positioned to act. But as content distribution becomes more fragmented, the test’s adequacy is being stress-tested.
Implications: If the server test is overturned, the costs would fall disproportionately on small creators, educators, and nonprofits who rely on embedding but lack resources to monitor links constantly. Large platforms might adapt, but the chilling effect on free expression could be severe. Conversely, if the test holds, copyright holders may push for alternative enforcement mechanisms, potentially leading to more aggressive takedown practices or automated filtering.
Bridge questions: How should liability be assigned in cases where embedding is used to deliberately circumvent copyright protections? What safeguards could prevent the server test from being exploited by bad actors while still protecting everyday users? Would a hybrid model—combining the server test with stronger secondary liability standards—better balance these interests?
Counterstrike scan: A coordinated influence campaign pushing Emmerich’s narrative might frame embedding as a loophole for "content theft," using emotional appeals about "protecting creators" while downplaying the technical and legal complexities. It might also exploit confusion around URL shorteners to paint them as tools of infringement, despite their widespread legitimate use. However, the actual content here appears to be a genuine legal dispute rather than a manufactured outrage campaign. The EFF’s response is measured, focusing on legal and technical merits rather than inflammatory rhetoric.
Patterns detected: none
Sentinel — Human
The article and comments exhibit strong human signals, including stylistic idiosyncrasies, advocacy-driven emphasis, and contextual legal nuance, with no detectable AI-generated patterns.