Online Infringement: Who’s Liable – Server or Link Embedder?

The future of how we share information online is facing a legal challenge, with the Electronic Frontier Foundation (EFF) arguing against a potential shift that could make embedding content – a common practice on the internet – legally risky. At issue is a long-standing principle known as the “server test,” which generally holds that the entity hosting a copyrighted perform is responsible for any infringement, not those who simply link to or embed it. This principle is now being contested in a case before the Fifth Circuit, potentially upending decades of established practice.

The Server Test: How It Works

For nearly two decades, U.S. Courts have largely adhered to the server test. This rule dictates that the party controlling the server where copyrighted material resides bears the primary responsibility for ensuring it’s legally posted. Someone who merely embeds a video, image, or article from that server isn’t directly liable for copyright infringement, even if the original content is unlawful. The EFF draws a parallel to the physical world: you aren’t legally responsible if you tell someone where to view a copyrighted work displayed elsewhere.

This distinction is crucial. The person controlling the server has the power to remove infringing content, whereas someone embedding a link has no such control. The content at the other finish of the link can be altered or removed at any time by the server’s operator. As the EFF points out, embedding is a fundamental aspect of how the internet functions, enabling everything from displaying fonts and streaming music to integrating customer support services. Removing legal protection for embedding would create significant uncertainty and potentially stifle online innovation.

Emmerich Newspapers’ Challenge and the Risk to Embedding

The case centers around a challenge from Emmerich Newspapers, which argues that embedding is a form of “displaying” copyrighted material, and therefore those who embed should be directly liable for infringement. If the Fifth Circuit agrees, a routine act like sharing a YouTube video on a blog could expose the publisher to legal repercussions. This would create a chilling effect, potentially leading to the removal of embedded content and a less interconnected web.

The EFF warns that this approach would be a “trap for the unwary,” turning a common online activity into a legal minefield. The implications extend beyond simple content sharing. The EFF also highlights a potential issue with the Digital Millennium Copyright Act (DMCA). Emmerich Newspapers’ arguments could mean that even using a URL shortener – a common practice for managing long links – could expose users to statutory penalties, a result the EFF believes Congress never intended. You can find more information about the DMCA and its provisions on the U.S. Copyright Office website.

The Broader Implications for Internet Architecture

The server test isn’t just about copyright law; it’s about the fundamental architecture of the internet. The EFF argues that linking and embedding are essential features of the web, enabling the seamless integration of content and services. Millions of websites rely on embedding external content or code for various functions. Assigning liability to those who embed would disrupt this system and potentially undermine the internet’s usefulness.

The EFF has filed an amicus brief with several public interest and trade organizations, outlining these concerns. They emphasize that the server test provides legal certainty by placing responsibility on the party best positioned to prevent infringement – the server operator. Shifting liability to embedders would introduce legal chaos and discourage the open exchange of information.

Recent Developments and the Second Circuit’s Decision

The debate over the server test isn’t recent, and courts have been grappling with the issue for some time. Notably, the Second Circuit recently rejected the server test in a case concerning embedded media, as reported by Offit Kurman. This decision highlights the growing division among federal courts on this matter, making the Fifth Circuit’s ruling all the more significant. The Venable law firm also notes this split, detailing the implications for copyright infringement cases involving embedded images in their analysis from August 2025.

What Comes Next

The Fifth Circuit’s decision will have far-reaching consequences for the internet. If the court rejects the server test, it could trigger a wave of litigation and force websites to reconsider their embedding practices. The EFF hopes the appeals court will uphold the established principle, recognizing the importance of embedding for a functioning and open internet. The outcome will likely influence future copyright cases and shape the legal landscape for online content sharing for years to come. The district court’s recognition of the importance of embedding, as noted in the EFF’s amicus brief, offers a glimmer of hope for those advocating for the continued freedom to link and share information online.