5th Circuit examines, and sets aside, server test for online copyright infringement claims
A federal appellate court diverted from the “server test,” which provides guidance for evaluating copyright infringement claims involving embedded content online. (Image from Shutterstock)
A federal appellate court has diverted from what’s known as the “server test,” which provides guidance for evaluating copyright infringement claims involving embedded content online.
The 5th U.S. Circuit Court of Appeals at New Orleans held in an opinion on Thursday that Particle Media, which operates news aggregator NewsBreak, does not run afoul of the Copyright Act when it links to news from various publications. However, the appellate court found the server test in this case “is on weak statutory footing.”
Under this test, which was established by the 9th U.S. Circuit Court of Appeals at San Francisco in Perfect 10 Inc. v. Amazon.com in 2007, “the owner of a computer that does not store and serve the electronic information to a user is not displaying that information, even if such owner in-line links to or frames the electronic information.”
“Put simply, the server test focuses on the definition of display—which requires showing a fixed work,” according to the 5th Circuit’s opinion. “The server test rests on the idea that a work is always fixed on a server. But we shift the focus to the definition of displaying a work publicly—which requires transmitting the work.”
The 5th Circuit also noted that while “rooted in different statutory text, this shift likely provides similar results as the server test in many ways.”
Particle Media was sued by Emmerich Newspapers for copyright infringement after it linked to news from publications that Emmerich owns and publishes. In an interlocutory appeal, Emmerich asked the 5th Circuit to examine whether the server test was the correct standard for a display infringement claim under the Copyright Act and whether URLs can constitute “copyright management information,” which are subject to the safeguards of the Digital Millenium Copyright Act.
“We find that the DMCA does not foreclose URLs from constituting CMI, but given the functional purpose of URLs, for a URL to be CMI, it would need to clearly convey the characteristics required by the statute,” the 5th Circuit said, in response to the latter question.
The 5th Circuit remanded the case back to the district court for proceedings consistent with its opinion.
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