The “Server Test” – A Shell Game in Copyright Law

Suppose you come across one of your images on a news site, blog, or promotional site– a common occurrence for many creators. You’re certain that you didn’t give permission to use the image, but when you contact the site owner about the use, they tell you it isn’t on their website. But of course, it is! You can see the image right there. What are they talking about? Well, they might be referring to the “server rule” or “server test”—a controversial topic in copyright law you should know.

According to the 9th Circuit, covering California and about a dozen other western states), infringing the “public display” right does NOT depend on whether you can see the image on the website, but whether the image is actually hosted on the owner’s computer (i.e., server). For instance, if a news site links to your image hosted on Instagram or Twitter but does not store a copy on its own server, the 9th Circuit considers this like hotlinking articles, and under this “server test,” considers the display non-infringing. The “server rule” was just re-affirmed this past Summer in a case captioned Hunley v. Instagram. Copyright attorney Aaron Moss has a thoughtful blog on the subject if you want to learn more.

Prominent copyright scholars Jane Ginsburg and Luke Budiardjo have criticized the “server test,” and in a few recent cases, the 2nd Circuit (New York State) disagrees with the 9th and thinks if anyone can see an image on a website, then gosh, that website is displaying the image publicly. This makes a lot more sense to us. But the 9th Circuit isn’t backing down. So, when we built the RightsClick Assessment tool to help you evaluate the strength of a possible infringement claim, we included a question to help you think about the “server test.”

Meanwhile, the Hunley case is on appeal and when different courts take opposite approaches, that is often the kind of dispute that will eventually be appealed to the Supreme Court. That is still a ways off, but we’ll be watching for news on the “server test” and will keep you posted!