No CTRL-ALT-DEL For the Server Test

On this episode of The Briefing, Scott Hervey and James Kachmar break down the Supreme Court’s decision to pass on the McGuckin v. Valnet case—and how it keeps the legal confusion swirling around the “server test” for embedding online content. With courts on opposite coasts taking different stances, what does this mean for publishers, bloggers, and social media managers? They talk about the risks, what you can do to stay safe, and why your location might matter more than you think. Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: The Supreme Court rejected a challenge to the Ninth Circuit server test, the test that the Ninth Circuit adopted in 2007 in the case of Perfect Ten versus Amazon, and it’s used for determining copyright liability when photos are embedded online. Because the server test has been rejected by the Southern District of New York, this refusal by the Supreme Court will continue to create a split among circuits and confusion among copyright litigants. I’m Scott Hervey, shareholder with the law firm of Weintraub Tobin, and I’m joined today by my partner, James Kachmar. We’re going to discuss this case and how to best navigate this issue on this installment of the briefing. James, it’s good to have you back on the briefing. It’s been a while. Thank you for coming on today. James: Thanks for having me, Scott. Scott: Okay, so let’s talk really briefly about the case that was up for a petition for cert to the Supreme Court, and it’s the case of McGuckin versus Valnet. And that case arises from Valnet, the operator of the website thattravel. Com, being accused of infringing 36 of McGuckin’s Instagram photos by embedding them in various online articles. A California federal court applied the server test and dismissed McGuckin’s suit, and the Ninth Circuit affirmed that decision in 2024. In affirming the dismissal, the Ninth Circuit referenced its 2023 decision of Hunt versus Instagram. This was a case that we covered here on the briefing in which the Ninth Circuit held that Instagram was not secondarily liable for copyright infringement when websites use Instagram posts to embed photos. James: Right, Scott. Why don’t we start with the basics? The server test is a legal rule used to determine whether embedding an image or video into a website constitutes direct copyright infringement. Embedding is the process of copying unique HTML code assigned to the location of a digital copy of the photo or video published to the internet, and the insertion of that code into a target web page or social media post so that the photo or video is linked for display within the target post. Under this test, a website only infringes a copyright if it hosts the copyrighted file on its own server. If you’re simply embedding a photo or video that is stored on someone else’s server, like linking to a Instagram post, you’re not displaying the content under the Copyright Act. You’re just the HTML code that tells the user’s browser where to go look to get the content. Scott: That’s a really good description, James. The server test arises from the 2007 Ninth Circuit case of Perfect 10 versus Amazon. In that case, Perfect Ten, they were a publisher of adult content. They sued Google for linking to and displaying thumbnail versions of their copyrighted images. Google didn’t host the full size images itself. Instead, it linked to them or embedded them from Perfect Ten’s website. The court held that because Google wasn’t storing the infringing images on its own server, it wasn’t displaying them in the legal sense. See, under the Copyright Act to Violate the Public, display, right? An infringer must, quote, display copies of the copyrighted work. Under the server test, embedding in a website that does not also store an image or video on its own server, does not communicate a copy of the image or video, and thus does not violate the copyright owner’s exclusive display right. Under Perfect10, an alleged infringer displays an image in violation of a copyright holder’s rights only if a copy of the image is stored on the computer’s server, on its hard disk or other storage device. James: That’s right, Scott. The server test is the law of the land, at least in the Ninth Circuit. However, it’s been rejected by a court in the Southern district of New York. There, the seminal case in the Southern district of New York is Goldman versus Breitbart News Network. There, in that case, several media companies embedded a tweet that contained a copyrighted photograph without the photographer’s permission. The defendants tried to get that case dismissed based on the server test. However, the court explicitly rejected the server test, holding that embedding an image, even if hosted on another server, can constitute a display for purposes of finding infringement under the Copyright Act. Scott: Right, that’s right. In that case, the court reasoned that the Copyright Act defines display broadly and makes no mention, the Copyright Act makes no mention, of server location. Therefore, what matters is the end user experience, whether the copyrighted work is perceptible to the user on the site doing the embedding. The judge in the Goldman case stated, When defendants caused the embedded tweets to appear on their website, their actions violated plaintiff’s exclusive display rate. James: Right. Here we are, at least for now, with a split between courts in these two circuits, one on the West Coast, one on the East Coast, that probably deal with the majority of online media cases. Where does that leave online publishers, bloggers, and social media managers? I think one of the key takeaways is that embedding content may not be risk-free, especially outside the Ninth Circuit. Scott: Right. No, I agree with you. I agree with you. That is the key takeaway. All right, so how do we navigate Why don’t we cover some practical advice for online publishers, bloggers, and social media managers? I think the first bit of advice is, when in doubt, seek permission from content owners or use platforms that provide properly licensed media, like content libraries or other sites like that. Another bit of advice would be embedding from services whose terms of use expressly address press embed licensing, where a party posting photos agrees to the platform, granting an embed license to third parties. But even then, I think there’s a risk of challenges to the platform’s terms and the enforceability of those terms. James: That’s right, Scott. I think it’s also important that you avoid embedding images from unknown or untrustworthy sources. If the original source does not have the rights to the image, embedding could still expose you to claims of infringement. Publishers should also weigh the risk of being sued in New York if your content targets readers in that area, or if your company is based outside the Ninth Circuit, you’re more likely to face scrutiny under the Goldman approach than the server test. Scott: Right. If I may add, I think it’s always a good idea to have a written content policy that’s been vetted by counsel. I think media companies Companies and bloggers and media managers should really have established clear internal guidelines for how your organization handles third-party images and embeds, especially in user-generated content marketing. James: That’s right, Scott. Until the Supreme Court takes up this issue or Congress amends the Copyright Act to clarify what display really means, this legal gray area will continue to pose risks for online publishers. Scott: Right, I agree. If you’re embedding content knowing the jurisdiction you operate in and having a smart content strategy, it really could make all the difference. James: That’s right, Scott. Scott: Well, that’s all for today’s episode of The Briefing. Thanks to James for joining me today. And thank you, the listener or viewer, for tuning in. We hope you found this episode informative and enjoyable. If you did, please remember to subscribe, believe us or review, and share this episode with your friends and colleagues. If you have any questions about the topics we covered today, please leave us a comment.