The Server Test Quandary and Embedding Permission Culture

Abstract

The practice of embedding—inserting code that displays content located elsewhere on the Internet—is ubiquitous online. Millions of users insert or encounter embeds daily. As a core type of link, embedding has helped disseminate information far and wide, furthering the goals of both copyright law and the Internet. For over a decade, embedding has been considered lawful under copyright law, guaranteed by a Ninth Circuit doctrine known as the server test, which holds that a person only displays a work when he or she hosts and serves it. This rule, which has greatly influenced the growth of the modern Internet, has recently come under siege, with two decisions from the U.S. District Court for the Southern District of New York threatening the harmony of the server test and the future of the practice of embedding.

This article enters the growing debate about the server test for two reasons. First, it offers legal and policy justifications for the server test, demonstrating that the preservation of the server test is desirable. Second, it considers alternative theories for permitting embedding. Finding that the alternative theories that have generally been proposed would be poor defenses for embedding, this article instead identifies a private ordering theory of permission-driven embedding that grants greater choices to content creators while preserving copyright and the Internet’s balance between exclusive rights and the spread of knowledge. As this article explains, permission-driven embedding is already here, with major online platforms already adopting it in part. Therefore, notwithstanding the server test’s prognosis, permission-driven embedding is part of the future of online content distribution.

Keywords: Copyright law, copyright, social media, websites, Internet, Internet law, law and social media, embedding, hyperlinks, circuit split, intellectual property, intellectual property law