EFF To Court: Don’t Make Embedding Illegal

EFF To Court: Don’t Make Embedding Illegal 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.