In this case before the Fifth Circuit Court of Appeals, appellant Emmerich Newspapers is calling for the court to subject some of the internet’s most fundamental and useful functions—linking and embedding—to staggering new potential liability. For nearly two decades, a pragmatic interpretation of the Copyright Act’s public display right, known as the "server test," has allowed the internet to flourish. It provides a clear and workable standard for determining whether a website or user has “displayed” a work online within the meaning of the Copyright Act, assigning principal responsibility to the web server that actually transmits the work to users, rather than websites and users who merely direct others to that work's location.

Rejecting the server test would make the common act of embedding links a legally fraught activity, discouraging its use except by the well-resourced, the reckless, and the ignorant. That, in turn, would significantly diminish the internet’s utility as a tool for the creation and dissemination of knowledge—a result at odds with copyright law’s Constitutional purpose “to Promote the Progress of Science and useful Arts.” U.S. Const. art. I, § 8, cl. 8.

Emmerich also claims that want the court to hold that the definition of “Copyright Management Information” (“CMI”) includes Uniform Resource Locators (“URLs”), and that changing or deleting that information violates the Digital Millennium Copyright Act. Such a ruling could subject unsuspecting internet users to ruinous legal risk for doing something as simple as using a link shortener, particularly given potential statutory penalties of up to $25,000 per violation.  

EFF, along with several other public interest organizations and trade associations, filed a brief to urge the court to follow multiple other circuits be embracing the server test. We also urge the court to reject Emmerich's expansive interpretation of the DMCA.