Copy That

STEPHEN DONIGER
Doniger Burroughs

LAST RITES FOR THE SERVER TEST?

FOR NEARLY 20 YEARS THE NINTH CIRCUIT has maintained that unauthorized embedding of a copyright holder’s work cannot be infringement, explaining that "where the image remains on third-party’s server and is not fixed in the memory of the infringer’s computer…embedding is not display" and thus violates no copyright interest.¹ For nearly as long just about every court outside of the Ninth Circuit (a slew of district courts—no other appellate court has ever ruled on the validity of the test) has said "nonsense." As a result, whether a copyright owner can protect her work against unauthorized displays accomplished through embedding depends almost entirely on where she can bring her claim of infringement.

Time and again courts in the Ninth Circuit have been asked to reconsider the wisdom of the "server test" and bring its jurisprudence in line with the rest of the country. Indeed, in 2023 and 2024 yours truly filed an amicus brief in support of en banc review in Hunley v. Instagram, a petition for en banc review in McGucken v. Valnet, and then a cert petition in McGucken v. Valnet-all asking very nicely and politely to please reconsider it in light of its near universal rejection everywhere else. Unfortunately, the Ninth Circuit said "nah, we’re good" and the Supreme Court denied review—likely because there is no actual circuit split.