by Max Day*
The Copyright Act provides owners an exclusive right to display their copyrighted works to the public. Despite this seemingly straightforward provision, courts disagree on how the display right applies to images and videos subject to unauthorized embedding on the internet. Since 2007, the Ninth Circuit has read the Copyright Act to impose no infringement liability on a website that embeds copyrighted works so long as the underlying copy of the works exists on an authorized host server. Though this reading of the Act—dubbed the “server test”—derives from a technically accurate understanding of how embedding technology works, its impact is faithless to legislative intentions and sound copyright policy. This Contribution first highlights various arguments for rejecting the server test and affording copyright owners more definite protection for the works they share online. Then, this Contribution puts forward legal alternatives to the unconditional server test, such as sublicensing agreements, the Digital Millennium Copyright Act, and fair use doctrine. Unlike the server test, these alternatives stem from express Copyright Act provisions and provide favorably balanced protections for limited instances of unauthorized embedding.
In determining whether Sony’s Betamax video tape recorder enabled consumers to infringe copyrighted public television broadcasts, Supreme Court Justice John Paul Stevens recognized that “[s]ound policy, as well as history, supports [the Court’s] consistent deference to Congress when major technological innovations alter the market for copyrighted materials.”1 But the federal legislature’s intellectual property protections do not decisively resolve disputes arising from every change in content consumption. The Betamax case itself—narrowly decided 5–4 in Sony’s favor—exemplifies the difficulty in applying prewritten law to new copyright questions.2
The twenty-first-century judiciary faces a similar problem in policing the bounds of copyright protection for works shared on the internet. Specifically, federal courts disagree on the legal status of websites that embed and present copyrighted materials that are stored and hosted on web servers belonging to third parties. Some judges conclude that unauthorized third-party embedding violates a copyright owner’s exclusive right to publicly display their work.3 They reason that embedding constitutes a “display” since internet users visiting the embedding website see the embedded content within the site’s webpage on their browser.4 Others have found differently, holding that embedding websites do not “display” the content they embed since it is the host server that communicates the copyrighted material to users’ web browsers and therefore “displays” the work at issue.5 Under this reading of the Copyright Act, whether a digital work is “displayed” depends on whether the alleged infringer transmits a copy of the work from their own servers, an inquiry dubbed “the server test.”6
These discrepant approaches to the Copyright Act’s display right leave copyright owners and embedders alike in a state of legal ambiguity. A creator hoping to control the contexts in which internet users consume their work would prevail in one jurisdiction, while a different court would waive liability for a website developer seeking to incorporate the creator’s work in their site by embedding without a license. Given the interjurisdictional nature of the internet, this inconsistency leaves both parties uneasy about their rights when sharing content online.
The question underpinning the server test debate surrounds a technical process for sharing digital content such as pictures, videos, or text on the internet.7 When an internet user navigates to a website on their web browser, they see a polished webpage comprised of text and visuals. The website’s coders design the webpage using code instructions written in Hypertext Markup Language (“HTML”).8 These instructions operate behind the scenes to instruct the user’s browser on how to arrange the webpage.9 The website operator saves these HTML instructions on their own server, which is a computer connected to the internet.10
HTML code cannot itself direct a webpage to incorporate visual content.11 Instead, when including an image or video in a webpage, the code guides each user’s browser to fetch the desired content from a separate storage location.12 This underlying content could be stored either on the webpage’s own host server or on a third-party server.13
“Embedding” content within a webpage involves employing a specific embed code within the HTML instructions that refers the user’s browser to content stored on a third-party server.14 Writing the embed code is the digital equivalent of providing an address:15 it gives the user’s browser the exact location where the embedded content is stored, enabling the browser to retrieve it and present it within the context of the webpage.16
While the embedding website’s code directs and facilitates the user’s access to embedded content, it is technically the interaction between the browser and the host server that causes the content to appear on the user’s screen.17 Embedding allows website operators to seamlessly integrate text, images, and videos within the webpage, even though image and video files are hosted on and served from a third-party server.18
Today, the internet ubiquitously employs embedding technology. Ninety-nine percent of blogs and a quarter of all news articles share content using embedding code.19 As this practice has become more prevalent, it has also raised questions about how the law polices the dissemination of copyrighted materials.
Section 106(5) of the Copyright Act affords copyright owners the exclusive right to “display” their works publicly.20 To “display” a work under the statute means “to show a copy of it, either directly or by . . . any other device or process.”21 The challenge left to the courts is defining what it means to “show a copy” of a copyrighted work on the internet.
The Ninth Circuit first confronted this issue in Perfect 10, Inc. v. Amazon.com, Inc., which assessed whether Google’s image search engine violated a plaintiff’s public display right by embedding their images within its webpage.22 The court concluded that Google had not infringed the plaintiff’s display right because Google’s webpage did not communicate a copy of the plaintiff’s images.23 Instead, Google merely provided HTML instructions to direct users’ browsers to a third-party server that stored the images.24 It was that host server that communicated and “showed” copies of the plaintiff’s work—copies stored in the server’s memory.25
In deciding Perfect 10, the Ninth Circuit announced what is now known as the server test:
A computer owner that stores an image as electronic information and serves that electronic information . . . is displaying the electronic information in violation of a copyright holder’s exclusive display right. Conversely, 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 [embeds] the electronic information.26
This test is based on a formal, technical reading of the Copyright Act: one cannot “show a copy” of a copyrighted work without possessing the copy being displayed.27
Since Perfect 10, multiple cases before the Northern District of Texas and the Southern District of New York involved instances of embedding that were more targeted than Google’s.28 While the image search engine in Perfect 10 embedded images using an automated process to index content broadly across the internet, the defendants in these cases intentionally sought out and embedded specific images and videos stored on third-party servers.29 These courts squarely rejected the server test, concluding that embedding websites directly infringe an owner’s display right under a functional reading of the Copyright Act.30 Although embedding websites do not possess underlying copies of their embedded work, these sites nevertheless “show a copy” by directing users’ browsers to display copyrighted works.31 Unlike the Ninth Circuit’s Perfect 10 decision, these rulings adequately serve the Copyright Act’s purpose by affording a practical display right for works shared online.
Nevertheless, the Ninth Circuit continues to adjudicate embedding disputes under the server test, holding fast to the notion that a website does not infringe the display right without storing embedded content on its own server.32 As recently as 2023, the Ninth Circuit applied the server test to specific and targeted embedding, holding that news websites had not violated the plaintiffs’ display rights by embedding their images from their social media accounts.33
The circuit split surrounding the Copyright Act’s display right results in part from the statute’s textual ambiguity. In defining the display right, the Copyright Act provides that to “display” a work is “to show a copy of it, either directly or by . . . any other device or process.”34 The Act further defines “copies” as “material objects . . . in which a work is fixed.”35 Finally, a work is “fixed” when it is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”36
The definitions of “copies” and “fixed” afford a starting point for applying copyright law in the digital context. Across circuits, courts recognize that a digital “copy” of a work is one maintained in a digital storage device such as a hard drive, random-access memory, or read-only memory, from which it can be “perceived, reproduced, or otherwise communicated.”37 When it comes to websites that embed work from third-party servers, the work stored in the server’s memory is the “copy” of the work being shown.38 The question under the display right therefore inquires which entity “shows” that server’s copy—the allegedly infringing website, whose embed code redirects users’ browsers to the host server, or the third-party server, which passively shares the copy in its memory with the redirected browser?
In assessing the analogous performance right under the Copyright Act,39 the Seventh Circuit likened this distinction to that between a magazine advertising a theater’s performances and the theater itself: “by listing plays and giving the name and address of the theaters where they are being performed, the New Yorker is not performing them.”40 The server test similarly reasons that a website’s embed code merely provides a web address for browsers to find embedded content and that “[p]roviding these HTML instructions is not equivalent to showing a copy” of the content.41
However, the server test glosses over the practical differences between embedding and its physical analogs. Readers thumbing through the New Yorker are only able to see a play’s showtimes and a theater’s address within the magazine. A paper copy of the New Yorker cannot enhance its appeal and draw in its readers by presenting a portion of the play itself within its pages. Readers must take it upon themselves to navigate to the listed theater and view the play in a setting where the play’s owner has authorized its performance. Yet a website can present embedded content—not just its digital address—to internet users directly within its webpage, stripping the content from the context for which its owner approved its inclusion.42
The server test also ignores textual clues in the Copyright Act that reject overly narrow readings. The definition of “display” explicitly includes displays performed “either directly or by . . . any other device or process.”43 The Act also clarifies that the terms “device” and “process” include those “now known or later developed.”44 These definitions suggest that the Copyright Act contemplates a broad, flexible display right that captures both direct and indirect means of showing copyrighted works.45 Embedding falls within the display definition because writing the HTML code to embed a work from a third-party server constitutes a “process” by which one “show[s] a copy” of the work, even if said process is indirect and post-dates the Copyright Act.46
This position also finds plausible support in the Copyright Act’s legislative history. A report by the 1976 House of Representatives reveals Congress’s intent to include “[e]ach and every method by which the images . . . comprising a . . . display are picked up and conveyed.”47 This further indicates the display right should be broadly construed to encompass embedding practices.48
The server test ignores what it functionally means to “show a copy.”49 A host server is merely a passive participant in the embedding process, while an embedding website actively employs embed codes to facilitate a work’s display.50 Accordingly, the Copyright Act should be read to assign liability for an embedded display based on the traditional notions of intent and causation that undergird tort law.51 The embedding website “shows a copy” of the embedded work because the website is responsible for the volitional conduct that facilitates the display.
Embedders and copyright owners also offer strong policy arguments to defend their respective positions. On balance, however, policy concerns favor abandoning the server test’s blanket protection for third-party embedding. Despite the test’s legal plausibility, it severely degrades the display right for works shared on the internet and disincentivizes creators from preparing and sharing content online
Defenders of the server test assert that embedding is a necessary function of the internet.52 Indeed, it has become common practice for websites of all kinds to incorporate visual content within their webpages by embedding works hosted on third-party servers.53 Abolishing the server test would leave embedders uncertain of their rights.54
But the other side of the debate bears stronger policy concerns. The server test strips copyright owners of the autonomy they expect to enjoy over their works when sharing them on the internet.55 Web designers’ unfettered freedom under the server test subjects copyrighted works to unauthorized and uncompensated appropriation via third-party embedding.56 Regardless of the server test’s legal merit, it fails as a policy to afford copyright owners any meaningful control over the context in which users consume their work by treating images and videos posted online as “free grist” for use by third-party websites.57
This not only offends the moral sense of autonomy and control one might expect copyright owners to enjoy, but it also sharply injures economic incentives for creating and sharing copyrighted works online.58 The server test eliminates any leverage creators might have in licensing their work, since third parties may freely embed content without authorization.59 Furthermore, embedding content in third-party websites detracts traffic from the forums to which creators do choose to share their work, depriving them of anticipated commercial benefits such as advertising revenue and audience exposure.60
In this way, the server test effectively exhausts creators’ public display rights the moment they publish online.61 The effect is practically identical to that caused by third-party sites that incorporate content by using unauthorized copies on their own host servers rather than by embedding from another’s server—a practice that unquestionably violates the Copyright Act.62 It also appears to be at odds with legislative purpose, as Congress intended the display right to include “not only the initial rendition or showing, but also any further act by which that rendition or showing is transmitted or communicated to the public.”63 The server test’s “digital exhaustion” of the display right hampers creators’ incentives to prepare and share their work, inhibiting innovation. It also undercuts the constitutional purpose of “promot[ing] the Progress of Science and useful Arts” that justifies intellectual property protection in the first place.64
Embedding supporters suggest that the test’s negative effect is overblown given the availability of self-help protections that can prevent unwanted embedding.65 A creator that seeks to prevent third-party websites from embedding their work can do so in myriad ways, including by deleting the work from their own host server, blocking access to their server using paywalls, or even configuring their server to block all external embedding.66
Nevertheless, the existence of these self-help tools does little to assuage concerns about unwanted embedding. Configuring a server in some of the manners suggested is difficult and requires computer science knowledge beyond the ken of most content creators. Copyright owners also cannot always directly control the host servers that store their work, as is the case when licensees store authorized copies of the owner’s work on servers owned and managed by the licensee. Even where protections can be employed, using a paywall or deleting the underlying copy of a creator’s work withholds it not only from unwanted embedding websites, but also from the audiences with which the creator does seek to share the work. These self-help mechanisms are impractical and undercut owners’ freedom to disseminate their works online.
Furthermore, nothing in the Copyright Act suggests that its rights should need to be self-enforced. If a copyright owner is legally entitled to prevent third-party websites from embedding their work, it is reasonable to expect the law to also afford injunctive protection.67 After all, “a right is hollow if the legal system provides insufficient means to protect it.”68
Policy considerations also strongly support holding unauthorized embedding websites liable for infringement. Without such a regime, the Copyright Act realistically fails to afford owners the full bundle of exclusive rights it promises. Thus, the most favorable resolution would be to abolish the server test and to conclude that unauthorized embedding infringes a copyright owner’s display rights.
As server test supporters note, a copyright regime that rejects the server test threatens to stifle the freedom with which parties can share content online via embedding.69 However, not all instances of third-party embedding would necessarily infringe an owner’s copyright without the server test. Of course, websites seeking to embed copyrighted content could request (and, if necessary, pay for) a direct license to do so from the content’s owner.70 But various legal alternatives can also continue to permit third-party websites to embed copyrighted materials in the absence of a license from the owner. These alternatives work either by authorizing non-owner content hosts to sublicense the right to display a copyrighted work or by providing statutory safe harbors and exceptions to prima facie infringement for embedding sites.
One alternative to the server test is for non-owner web platforms that host copyrighted materials to adopt terms of service under which owners permit the platforms to sublicense the display right.71 Today, many websites embed content hosted on social media sites like Instagram or Twitter within their own webpages.72 Without the server test, doing so would violate the copyright owner’s display right.73 In contrast, social media platforms’ terms of service generally authorize those sites to display copyrighted works that owners upload. These terms of service act as contractual licenses that allow the platforms to host and display copies of the content within the platform’s context.74 This feature is necessary for users to share their work within a social media site’s environment.
Social media sites can extend this display right to external embedders by claiming sublicensing rights in their terms of service.75 In fact, many social media sites already do so, since embedding capabilities draw more users to their services. For example, Twitter’s Terms of Service read: “[t]his license authorizes us to make your Content available to the rest of the world and to let others do the same.”77 Like the server test, sublicensing agreements such as Twitter’s allow third-party websites to freely incorporate publicly published content into their own webpages, quelling concerns that embedding would disappear altogether without the server test.78
Both the server test and the sublicensing solution cause copyright owners to relinquish control over their work’s display. However, the critical distinction is that sublicensing leaves the decision to do so with copyright owners. Rather than exempting all embedding websites from liability under the server test, sublicensing allows the embedding decision to play out in the private market. If a content creator wants to prevent their work from appearing on other websites, they may avoid posting to sites that employ such sublicensing terms. Those creators are not foreclosed from sharing their work elsewhere on the internet. The sublicensing solution—unlike the server test—allows copyright owners to retain autonomy over their works.
In addition to private solutions, the Digital Millenium Copyright Act (“DMCA”) provides limited relief from infringement liability for embedders who unknowingly incorporate unauthorized content.79 This safe harbor is especially useful in shielding automated, large-scale embedding processes like Google’s image search engine from contributory liability when such processes incidentally display infringing copies of works hosted across the internet.80 As long as the embedding party lacks actual knowledge that the content is infringing, is not aware of facts or circumstances from which infringement is apparent, and acts expeditiously to disable the embed upon notice of infringement, the DMCA prevents them from having to pay damages to copyright owners.81
Admittedly, the DMCA’s scope of protection is circumscribed, since the safe harbor only exempts the embedding of unauthorized content.82 This alternative to the server test does not protect against parties that embed content directly from authorized sources.83 Nevertheless, those parties may be able to combat infringement claims under the doctrine of fair use.
One of the primary concerns with rejecting the server test is that to do so would prohibit embedding practices that recontextualize copyrighted works online with a purpose distinct from that of the original work.84 But the server test is not necessary to protect such creative uses. Rather, the Copyright Act provides a statutory defense to prima facie infringement claims for embeddings that constitute a fair use of copyrighted material.85 Indeed, the very purpose of the fair use doctrine is to relieve courts of an obligation to rigidly apply the Copyright Act “when, on occasion, it would stifle the very creativity which [copyright] is designed to foster.”86 Fair use provides a case-by-case alternative to the server test that protects embedding practices when they meaningfully transform the purpose of a copyrighted work.
Whether an otherwise infringing instance of embedding qualifies for a fair use defense depends on the purpose and character of the embedding, the nature of the content being embedded, the amount and substantiality of the original content that is embedded, and the effect the embedding has on the potential market for the content.87 The balance of these factors depends on the specifics of each case, but the doctrine likely permits many transformative uses where content is embedded for the purposes of adding commentary or critique in the same way physical publications incorporate copyrighted works.88
The fair use defense could also plausibly apply to search engine embeddings like Google’s image search engine at issue in Perfect 10.89 Such a conclusion rests largely on the fact that image search engines use embedded images in a particularly transformative manner.90 Embedded works in a search engine facilitate what is essentially a public utility designed to help users navigate the internet.91 Even though search engines are commercial ventures that generate advertising revenue, their embedding practices are “more incidental and less exploitative in nature than more traditional types of commercial use,” such as a website that specifically targets and embeds one particular piece of work.92
It is crucial, though, to recognize a primary critique of using fair use as an alternative to the server test: the fair use doctrine cannot shield embedding websites from liability with the same reliability and clarity as the server test. The fair use inquiry is innately “open-ended and context-sensitive,” leaving its resolution in any given case to rest upon the specific facts before a court.93 Its fact-sensitive nature leaves the rights of embedding websites and copyright owners much more uncertain than does the bright-line server test. It also means that courts cannot wield fair use as a tool for pre-trial disposition to the same extent the server test allows.94
Nevertheless, these are not reasons enough to eschew reliance on fair use in favor of the server test. To the extent that the uncertainty associated with the fair use inquiry is an undesirable aspect of the law, it is one that Congress plainly and explicitly endorses by incorporating its fact-specific inquiry within the Copyright Act.95 In contrast, the server test is a judicially crafted workaround for embedders that is rooted in a dubious, albeit plausible, reading of the Act’s display right.
Though existing copyright law does not clearly determine how the display right impacts unauthorized embedding practices, either Congress or the Supreme Court may put the issue to rest in the future. When considering a definitive answer, these authorities should recognize abandoning the server test would better secure meaningful display rights, autonomy over online content, and associated economic rewards for copyright owners. In lieu of the server test, sublicensing agreements, the DMCA, and the fair use doctrine can help balance the interests in copyright protection with the equally laudable interests in the freedom to disseminate content on the internet.
* Max Day is a J.D. Candidate (2025) at New York University School of Law. This Contribution is a commentary on the problem at the 2024 FAME Intellectual Property Law Moot Court Competition, hosted by Cardozo School of Law. This Contribution distills one side of the argument, and the views expressed herein do not necessarily represent those of the author. This
Contribution was additionally adapted from a final paper for the course Science and the Courts, taught by the Honorable Jed S. Rakoff, United States District Judge in the Southern District of New York.
1. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 431 (1984).
2. See id. (“In a case like this, in which Congress has not plainly marked our course, we must be circumspect in construing the scope of rights created by a legislative enactment which never contemplated such a calculus of interests.”).
3. See, e.g., Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585, 593 (S.D.N.Y. 2018) (holding that media organizations infringed photographer’s exclusive right to display his photograph by embedding it on their websites).
4. See id.
5. See, e.g., Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1162 (9th Cir. 2007) (holding that Google’s image search engine did not violate the display right because the website publisher’s server, not Google’s, stores and displays the images at issue), abrogated on other grounds by Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010).
6. Id.
7. Some authorities use the terms “framing” or “in-line linking” instead of “embedding.” Though these terms refer to practices that differ slightly in terms of technical specifics, the legal analysis is the same. Accordingly, this Contribution uses the term “embedding” to refer to all of these practices generally.
8. Goldman, 302 F. Supp. 3d at 587.
9. Id.
10. Id.
11. Perfect 10, 508 F.3d at 1155.
12. Goldman, 302 F. Supp. 3d at 587.
13. Id.
14. Id.
15. Perfect 10, 508 F.3d at 1155.
16. Goldman, 302 F. Supp. 3d at 587.
17. Perfect 10, 508 F.3d at 1160.
18. Goldman, 302 F. Supp. 3d at 587.
19. Michael P. Goodyear, The Server Test Quandary and Embedding Permission Culture, 75 Olka. L. Rev. 263, 293 (2023).
20. 17 U.S.C. § 106(5).
21. 17 U.S.C. § 101.
22. Perfect 10, 508 F.3d at 1159.
23. Id. at 1161.
24. Id.
25. Id.
26. Id. at 1159.
27. Id.
28. See Leader’s Inst., LLC v. Jackson, No. 3:14-CV-3572-B, 2017 WL 5629514, at *11 (N.D. Tex. Nov. 22, 2017); Goldman, 302 F. Supp. 3d at 596; Nicklen v. Sinclair Broad. Grp., Inc., 551 F. Supp. 3d 188, 195–96 (S.D.N.Y. 2021); McGucken v. Newsweek LLC, 19 Civ. 9617 (KPF), 2022 WL 836786, at *6 (S.D.N.Y. Mar. 21, 2022).
29. Compare Perfect 10, 508 F.3d at 1155 (“Google operates a search engine, a software program that automatically accesses thousands of websites . . . and indexes them within a database stored on Google’s computers.”), with Nicklen, 551 F. Supp. 3d at 192 (addressing a web article that embedded a single video produced by the plaintiff in an article about the video).
30. See Leader’s Inst., 2017 WL 5629514, at *11; Goldman, 302 F. Supp. 3d at 596; Nicklen, 551 F. Supp. 3d at 195–96; McGucken, 2022 WL 836786, at *6.
31. Leader’s Inst., 2017 WL 5629514, at *10.
32. See, e.g., Evox Prods., LLC v. Verizon Media, Inc., No. 21-56046, 2022 WL 17430309, at *1 (9th Cir. Dec. 6, 2022) (denying defendant’s motion to dismiss because plaintiff plausibly alleged that defendant displayed copyrighted images stored on its own servers); Bell v. Wilmott Storage Servs. LLC, 12 F.4th 1065, 1073–74 (9th Cir. 2021) (concluding that defendant’s website displayed plaintiff’s works because the site showed a copy of plaintiff’s photograph stored on defendant’s own server); Great Bowery v. Best Little Sites, 671 F. Supp. 3d 1297, 1308 (D. Utah 2023) (adopting the server test).
33. Hunley v. Instagram, LLC, 73 F.4th 1060, 1077 (9th Cir. 2023).
34. 17 U.S.C. § 101. This section further provides that to display a work “publicly” means “to transmit or otherwise communicate a . . . display of the work to . . . the public, by means of any device or process.”
35. Id.
36. Id.
37. See, e.g., MAI Sys. Corp. v. Peak Comp., Inc., 991 F.2d 511, 518 (9th Cir. 1993) (holding that a computer “copies” a software program when it transfers the program from a third-party storage device into its own memory); Vault Corp. v. Quaid Software Ltd., 847 F.2d 255, 260 (5th Cir. 1988) (same); Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121, 127–30 (2d Cir. 2008) (recognizing that digital embodiments stored on hard drives are “copies” because they are fixed for more than a transitory duration); Stenograph L.L.C. v. Bossard Assocs., Inc., 144 F.3d 96, 101–02 (D.C. Cir. 1998) (explaining that copying occurred when the software was loaded into the defendant’s computer’s random access memory).
38. Perfect 10, 508 F.3d at 1160; see also Nicklen, 551 F. Supp. 3d at 195 (acknowledging that the underlying copy of the work at issue “remains on a third-party’s server and is not fixed in the memory of the infringer’s computer”).
39. See 17 U.S.C. § 106(4) (granting copyright owners an exclusive right to perform copyrighted works publicly).
40. Flava Works, Inc. v. Gunter, 689 F.3d 754, 761 (7th Cir. 2012).
41. Perfect 10, 508 F.3d at 1161.
42. See, e.g., Nicklen, 551 F. Supp. 3d at 195 (noting that the defendant’s webpage presents the plaintiff’s work to readers “whether he or she asked for it, looked for it, clicked on it, or not”).
43. 17 U.S.C. § 101.
44. Id. (emphasis added).
45. Goldman, 302 F. Supp. 3d at 588–89.
46. Id. at 594 (“Properly understood, the steps necessary to embed a Tweet are accomplished by the defendant website; these steps constitute a process. The plain language of the Copyright Act calls for no more.”).
47. H.R. Rep. No. 94-1476, at 64 (1976).
48. See Nicklen, 551 F. Supp. 3d at 194 (“The [display] right is concerned not with how a work is shown, but that a work is shown.”).
49. See id. at 194 (citing Merriam-Webster’s dictionary, which defines to “show” as “to cause or permit to be seen”).
50. See Goldman, 302 F. Supp. 3d at 594 (“[E]ach and every defendant itself took active steps to put a process in place that resulted in a transmission of the photos so that they could be visibly shown.”).
51. See DeVoto v. Pacific Fidelity Life Ins. Co., 618 F.2d 1340, 1347 (9th Cir. 1980) (“Tort law ordinarily imputes to an actor the intention to cause the natural and probable consequences of his conduct.”); Restatement (Second) of Torts § 8A cmt. b (Am. L. Inst. 1965) (“If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result.”).
52. See Hunley, 73 F.4th at 1076.
53. Goodyear, supra note 19, at 293 (noting that ninety-nine percent of blogs and a quarter of all news articles rely on embedding).
54. See Jane C. Ginsburg & Luke Ali Budiardjo, Embedding Content or Interring Copyright: Does the Internet Need the “Server Rule”?, 41 Colum. J. L. & Arts 417, 438–39 (2019) (noting that embedders may need to rely on an unpredictable fair use defense without the server test).
55. See id. at 430.
56. Id.
57. Id. at 430–31 (citing Otto v. Hearst Communications, Inc., 345 F. Supp. 3d 412, 428 (S.D.N.Y. 2018)).
58. Id. at 431–32.
59. Id. at 431; Goldman, 302 F. Supp. 3d at 593 (noting that the server test would nullify incentives for websites to pay licensing fees and “deprive content creators of the resources necessary to invest in further creation”).
60. Ginsburg & Budiardjo, supra note 54, at 432.
61. Id. at 423.
62. Id. (“Under the server rule, the authors’ initial making available of their works online effects a kind of digital exhaustion of public display rights, in contrast to courts’ refusal to recognize an equivalent outcome when redissemination of a digital file occurs through copies.”); see also Bell, 12 F.4th at 1073–74 (concluding that defendant’s website displayed plaintiff’s works because the site showed a copy of plaintiff’s photograph stored on defendant’s own web server).
63. H.R. Rep. No. 94-1476, at 63 (1976); but see Perfect 10, 508 F.3d at 1162 (concluding that a host server, not an embedding site, transmits embedded images).
64. See U.S. Const. art. I, § 8, cl. 8.
65. See, e.g., Great Bowery, 671 F. Supp. 3d at 1308 (“In no way has the holder surrendered control over how, when, and by whom their work is subsequently shown.”).
66. See id. (suggesting the paywall and deletion methods); Hunley, 73 F.4th at 1065 (noting that host servers can control whether embedding is available to other websites).
67. Professor Richard A. Epstein made an analogous argument in an amicus brief to the California Supreme Court in Intel Corporation v. Hamidi, 71 P.3d 296 (Cal. 2003). That case involved Kourosh Kenneth Hamidi, a former Intel employee who sent tens of thousands of emails to current employees, critiquing Intel’s employment practices. Id. at 301–02. Intel sued Hamidi for flooding its employees’ inboxes, alleging trespass to chattels, namely, its computer system. Id. The court declined to find Hamidi liable, concluding that trespass to chattels requires damage to the chattels. Id. Intel’s chattels had not been damaged, and thus no trespass had taken place. Id. The court did, however, acknowledge Intel’s legal right to attempt to block Hamidi’s messages on its own. Id. at 308. Epstein later criticized this outcome, noting that the court “never explained why, if self-help was allowed for unauthorized use cases, the injunction should be denied when those measures failed.” Richard A. Epstein, The Property Rights Movement and Intellectual Property 60 (U. Chi. L. & Econ., Olin Working Paper No. 381, 2008).
68. Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154, 160 (Wisc. 1997) (awarding punitive damages for trespass to land to enforce a landowner’s exclusion right in the absence of compensatory damages).
69. See Ginsburg & Budiardjo, supra note 54, at 431 (noting the modern expectation that access to and consumption of online content is, or should be, free).
70. See 17 U.S.C. § 106 (granting copyright owners the exclusive right to authorize others to display their work).
71. Ginsburg & Budiardjo, supra note 54, at 464.
72. See, e.g., Hunley, 73 F.4th at 1065 (noting that BuzzFeed and Time embedded the plaintiffs’ Instagram posts within their external webpages); Goldman, 302 F. Supp. 3d at 586–87 (noting that defendants’ websites embedded plaintiff’s photograph from Twitter posts).
73. See Goldman, 302 F. Supp. 3d at 593 (holding that embedding constitutes a “display” under the Copyright Act).
74. See, e.g., Terms of Service, Twitter, https://twitter.com/en/tos (last visited May 10, 2024) (“By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license . . . to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods now known or later developed . . . .”).
75. Ginsburg & Budiardjo, supra note 54, at 464.
76. See, e.g., Twitter, supra note 74 (“[Y]ou grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense).” (emphasis added)).
77. Id. (emphasis added).
78. Ginsburg & Budiardjo, supra note 54, at 464.
79. See 17 U.S.C. § 512(d) (waiving damages liability “for infringement of copyright by reason of the [service] provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link”).
80. See Perfect 10, 508 F.3d at 1175 (noting a possible DMCA defense for Google’s image search engine).
81. 17 U.S.C. § 512(d). The statute also requires that the service provider seeking liability protection not receive any financial benefit directly attributable to the infringing activity, see 17 U.S.C. § 512(d)(2), but such a condition is almost always met in the context of large-scale, automated systems like Google’s.
82. See 17 U.S.C. § 512.
83. Ginsburg & Budiardjo, supra note 54, at 462.
84. See Nicklen, 551 F. Supp. 3d at 191 (defendants arguing that their unauthorized inclusion of plaintiff’s video in a digital article transformed the video’s original purpose).
85. 17 U.S.C. § 107; see also Nicklen, 551 F. Supp. 3d at 198 (acknowledging an embedding website’s possible fair use defense).
86. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994) (quoting Stewart v. Abend, 495 U.S. 207, 236 (1990)).
87. 17 U.S.C. § 107.
88. See Goldman, 302 F. Supp. 3d at 596 (noting a “very serious and strong fair use defense” to consider at trial for Time’s and Buzzfeed’s embedding of plaintiff’s photograph).
89. In fact, the Central District of California found a similar search engine’s embedding process to constitute fair use on a motion for summary judgment in Kelly v. Arriba Soft Corp., 77 F. Supp. 2d 1116, 1121 (C.D. Cal. 1999). On appeal, the Ninth Circuit reversed because the parties’ motions had not requested summary judgment on the issue. Kelly v. Arriba Soft Corp., 336 F.3d 811, 822 (9th Cir. 2003). That said, the circuit court did not repudiate the district court’s legal analysis. Id.
90. Perfect 10, 508 F.3d at 1165 (“[A] search engine provides an entirely new use for the original work . . . .”).
91. Id.
92. Kelly, 336 F.3d at 818.
93. Cariou v. Prince, 714 F.3d 694, 705 (2d Cir. 2013).
94. See, e.g., Nicklen, 551 F. Supp. 3d at 199 (denying defendant’s motion to dismiss “[b]ecause the Court’s fair use analysis would benefit from a better-developed factual record”).
95. See 17 U.S.C. § 107.