The ‘Server Test’ and Online Copyright: A Shifting Legal Landscape

The question of who bears responsibility for copyright infringement online – the entity hosting the content or a user simply linking or embedding it – remains a contentious issue in U.S. Courts. For nearly two decades, the “server test” has been a prevailing standard, largely shielding those who embed content from direct liability. However, this principle is facing increasing challenges, creating a fractured legal landscape for digital publishers and internet users alike.

What is the ‘Server Test’?

Originating from the Ninth Circuit’s 2007 decision in Perfect 10, Inc. V. Amazon.com, Inc., the server test stipulates that a website must host and serve copyrighted images directly from its own server to be considered as “displaying” the image under 17 U.S.C. § 106(5). Essentially, if a website embeds or links to content hosted elsewhere, it isn’t directly infringing on copyright.

This test draws a parallel to the analog world, where simply directing someone to a copyrighted function doesn’t create liability. Those controlling the server – and thus access to the content – are the ones primarily responsible for potential infringement.

The Ninth Circuit’s Stance and Recent Challenges

The Ninth Circuit has consistently upheld the server test, as reaffirmed in the McGucken v. Valnet, Inc. case. The Supreme Court’s decision to decline review of this case in July 2025 leaves the Ninth Circuit’s standard in place for cases within its jurisdiction. However, other federal district courts, particularly within the Second Circuit, have begun to challenge or narrow the application of the server test.

A recent challenge comes from Emmerich Newspapers, which argues that embedding links constitutes “displaying” the content, making the embedding entity directly liable for infringement. This argument, if successful, could significantly increase the legal risks associated with a common internet practice.

Why the Server Test Matters

The Electronic Frontier Foundation (EFF) and other public interest organizations argue that rejecting the server test would destabilize fundamental online activities. Embedding and linking are crucial to the internet’s architecture, enabling functions like font selection, music streaming, and customer support. The server test provides legal certainty by assigning responsibility to those best positioned to prevent infringement – the server operators.

Emmerich Newspapers’ argument that altering a URL violates the Digital Millennium Copyright Act (DMCA) could have unintended consequences, potentially penalizing users for using link shorteners.

The Current Split and Future Outlook

Currently, a split exists among federal courts regarding the application of the server test. The Ninth Circuit remains relatively strong in its adherence to the test, while other courts are questioning its validity. This divergence creates uncertainty for online publishers and users. Without further clarification from the Supreme Court, the legal landscape surrounding online copyright infringement involving embedded content will likely remain fragmented, requiring careful navigation of differing jurisdictional standards.