EFF To Court: Don’t Make Embedding Illegal
from the the-server-test-is-important dept
Who should be directly liable for online infringement – the entity that serves it up or a user who embeds a link to it? For almost two decades, most U.S. courts have held that the former is responsible, applying a rule called the server test. Under the server test, whomever controls the server that hosts a copyrighted work—and therefore determines who has access to what and how—can be directly liable if that content turns out to be infringing. Anyone else who merely links to it can be secondarily liable in some circumstances (for example, if that third party promotes the infringement), but isn’t on the hook under most circumstances.
The test just makes sense. In the analog world, a person is free to tell others where they may view a third party’s display of a copyrighted work, without being directly liable for infringement if that display turns out to be unlawful. The server test is the straightforward application of the same principle in the online context. A user that links to a picture, video, or article isn’t in charge of transmitting that content to the world, nor are they in a good position to know whether that content violates copyright. In fact, the user doesn’t even control what’s located on the other end of the link—the person that controls the server can change what’s on it at any time, such as swapping in different images, re-editing a video or rewriting an article.
But a news publisher, Emmerich Newspapers, wants the Fifth Circuit to reject the server test, arguing that the entity that embeds links to the content is responsible for “displaying” it and, therefore, can be directly liable if the content turns out to be infringing. If they are right, the common act of embedding is a legally fraught activity and a trap for the unwary.
The Court should decline, or risk destabilizing fundamental, and useful, online activities. As we explain in an amicus brief filed with several public interest and trade organizations, linking and embedding are not unusual, nefarious, or misleading practices. Rather, the ability to embed external content and code is a crucial design feature of internet architecture, responsible for many of the internet’s most useful functions. Millions of websites—including EFF’s—embed external content or code for everything from selecting fonts and streaming music to providing services like customer support and legal compliance. The server test provides legal certainty for internet users by assigning primary responsibility to the person with the best ability to prevent infringement. Emmerich’s approach, by contrast, invites legal chaos.
Emmerich also claims that altering a URL violates the Digital Millennium Copyright Act’s prohibition on changing or deleting copyright management information. If they are correct, using a link shortener could put users at risks of statutory penalties—an outcome Congress surely did not intend.
Both of these theories would make common internet activities legally risky and undermine copyright’s Constitutional purpose: to promote the creation of and access to knowledge. The district court recognized as much and we hope the appeals court agrees.
Reposted from the EFF’s Deeplinks blog.
Filed Under: 5th circuit, copyright, embedding, intermediary liability, liability, linking, server test
Companies: emmerich newspapers
Comments on “EFF To Court: Don’t Make Embedding Illegal”
Attacking linking to content/link-preview isn't new
Remember this?
I had doubts this is the more literal copyright edition of link tax.
Again, link and its previews merely fetch data from where the link is pointing. What you see on your browser does not mean the content is on the linking site’s server. It’s literally just HTML code that instructs your browser to fetch data to be able to be rendered at a certain URL. And even if the site stores such a copy (often a downsized resolution), that is given by the linked site voluntarily.
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I remember that.
Your overall point is correct...
…as is your point about URL shorteners; I don’t see anything infringing about them.
However, URL shorteners are a worst practice in security and in privacy and in usability; nobody should use them, ever.
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That would cause issues for certain technologies. The cheapest NFC tags can have a 40 character limit.
Not everyone trusts or likes QR codes, so long URLs are often shortened for human readability and memorization instead.
Short URL redirects controlled by the user/owner can maintain a single, memorable URL regardless of which host they use or which domain, so independent artists, for instance, can maintain control over their associated links without having to invest in one particular service or host.
And many shorteners are used by entities trusted by their users. If I use survey software that only outputs long randomized alphanumeric URLs, my use of a shortener is a service to the people I’m wanting feedback from and if it’s a security issue, they know I’m at fault, so I wouldn’t intentionally cause them strife with a sketchy URL.
So, I post a link to perfectly legal content, months later the hosting server swaps that content for infringing content and suddenly I’m the criminal?
I become responsible for constantly checking every link I’ve ever created to ensure they stay non-infringing?
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The usual problem is that a domain name registration is allowed to expire by its original registrants, at which point anyone can grab it and point it anywhere. It’s not just that the new registrant may be hosting copyvios, they could be hosting basically anything – including porn. Once a link is out there, it’s hard to change as third party sites who link to you typically won’t bother updating those links when they’re lost to “link rot” and the search engines are so aggressive in targeting what they perceive as “duplicate content” that losing a domain name usually kills all traffic, even if it tries to come back elsewhere.
A case in point is the late Clarke Ingram’s uhf.tv sites at uhfhistory.com and dumonthistory.com – this content was originally on some other URL but, as Mr. Ingram became progressively more ill and ultimately passed away, no one had control of the original domains (which were on some other URL, I don’t remember which). As soon as they were expired, they were cybersquatted with one redirected to porn.
Another case is the former uncyclopedia[.]ro – Uncyclopedia is (like Wikipedia) a long-running encyclopaedia parody. The joke is that they let anyone edit and the result is that they post nonsense. The .ro domain is not their main site, just a localised version for Romania. When the original localised site for that country rebranded to the equivalent of ne-cyclopedia instead of un-cyclopedia, the “old” .ro domain was expired and cybersquatted. Supposedly minor, as Romania is a tiny piece of the Uncyclopedia puzzle? Nope. Suddenly not only multiple-language Wikipedia articles about [[Uncyclopedia]] (if they had a list of the individual language editions) suddenly pointing to porn, the downstream sites that re-use Wikipedia content under a free licence – including an encyclopaedia for kids – are suddenly, unknowingly linking to porn.
I doubt that criminalising the sites hosting the linkrot is going to solve much, but that’s where this is going if merely linking to problematic content means being hunted as an outlaw.
Skimming the case, this seems to be more than embedding links in good faith. Newsbreak seems to be using it to show actual content in bad faith; exactly the sort of situation secondary liability is meant for?
This feels like it depends heavily on how exactly it’s embedded. One can certainly embed content that is functionally displaying it.
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Same.
I think it’s a debate.
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Yes, and if I embed a YouTube video on my website and it turns out the person who posted it didn’t get permission from the rightsholder, should I be liable?
In layman terms, Is there some indicator on how the fifth will rule?, are we screwed?.