In a decision on July 17, 2023, the Ninth Circuit in the case of Hunley v. Instagram, LLC, No. 22-15293, reaffirmed the legally significant, albeit controversial, “server test.” This rule provides websites with a layer of protection against copyright infringement liabilities when they embed images that are hosted on another website’s server. The Ninth Circuit has upheld this test since 2007. However, it’s worth mentioning that the test has recently faced substantial challenges in lower courts across other jurisdictions.According to Davis Wright Tremaine LLP.
The server test confines the definition of ‘public display’ right in the context of copyright law. Where an image is embedded from a third-party server, the host does not violate the right, the rationale being that no copy of the work is made on the servers of the website displaying the image.
As forward-looking as this may seem, recent years have seen heightened debates around its relevance and applicability in the digital age. The server test’s critics argue that it’s outdated in today’s dynamic digital landscape and allows for unfettered and potentially infringing exploitation of copyrighted material online. Detractors put forth that the test is inadequate to address the complexities posed by emerging web technologies and digital content sharing practices.
Despite these criticisms, this recent reaffirmation of the server test within the Ninth Circuit reflects a continued endorsement of the concept, at least for now. However, the escalating debates and differing interpretations from other lower courts signal that further clarification or even reconsideration of the server test might be on the horizon. For legal professionals and corporations dealing with digital copyright issues, monitoring the future development and application of the server test will be crucial.