The seemingly simple act of embedding content online – a cornerstone of how the internet functions – is facing a legal challenge that could dramatically reshape the digital landscape. A case before the Fifth Circuit Court of Appeals threatens to upend decades of established practice, potentially holding websites liable for copyright infringement simply for embedding content hosted elsewhere. The Electronic Frontier Foundation (EFF) is intervening, arguing that such a shift would introduce legal chaos and stifle online expression.
At the heart of the dispute is the “server test,” a legal standard that has, for nearly two decades, largely shielded websites from direct copyright liability when they embed or link to content hosted on third-party servers. This test, originating from the Ninth Circuit’s 2007 decision in Perfect 10, Inc. V. Amazon.com, Inc., dictates that a website must host and serve the copyrighted image or video directly to be considered to be “displaying” it for copyright purposes. The EFF contends that rejecting this test would fundamentally misunderstand how the internet operates.
The challenge comes from Emmerich Newspapers, which argues that embedding content constitutes “displaying” it, making the embedding website directly liable for any resulting copyright infringement. If Emmerich prevails, routinely sharing links and embedding videos from platforms like YouTube could expose websites to significant legal risk. This argument, the EFF warns, would transform a common and essential online practice into a potential legal trap.
“Linking and embedding are not unusual, nefarious, or misleading practices,” the EFF explained in an amicus brief filed with several public interest and trade organizations. “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 rely on embedding for everything from fonts and music streaming to customer support and legal compliance.
The implications extend beyond simple convenience. Emmerich Newspapers also argues that altering a URL – such as using a link shortener – violates the Digital Millennium Copyright Act’s (DMCA) prohibition on changing or deleting copyright management information. If accepted, this claim could subject users of link shorteners to statutory penalties, a result the EFF argues Congress never intended. The DMCA was signed into law in 1998, aiming to update copyright laws for the digital age .
The EFF’s argument rests on a fundamental principle: those who control the server hosting the content – and therefore determine access – should bear the primary responsibility for preventing infringement. The organization draws a parallel to the analog world, where simply telling someone where to view copyrighted material doesn’t create legal liability. The server test, they argue, applies this same principle to the online context.
This case highlights a growing split among federal courts regarding the application of the server test. As noted in a report by Venable LLP , the U.S. District Court for the Western District of Texas has recently challenged the test, joining other courts in narrowing its applicability. However, the Ninth Circuit has reaffirmed the test, as evidenced by the Hunley v. Instagram LLC case . The Supreme Court declined to resolve this split in July 2025, leaving the legal landscape fractured .
The outcome of the Fifth Circuit case will have far-reaching consequences for online publishers, bloggers and everyday internet users. A rejection of the server test could stifle online innovation and create a chilling effect on free expression. The EFF hopes the court will recognize the importance of maintaining the current legal framework, which has fostered a vibrant and open internet for decades.
What comes next depends on the Fifth Circuit’s decision. The court’s ruling could either reinforce the established server test or pave the way for a latest, more restrictive standard. Regardless of the outcome, this case underscores the ongoing tension between copyright law and the realities of the digital age. Share your thoughts on the implications of this case in the comments below.
