Analysing the ‘Server Test’ Defence in Copyright Cases: A Harmful or a Beneficial Alliance for the Creative Community?

Simran Upadhyaya,West Bengal National University of Juridical Sciences

Sri Hari Mangalam, West Bengal National University of Juridical Sciences


Visual arts lies at the heart of our culture, representing an array of artistic works such as photography, painting, sculpture etc. The discourse on visual arts captures the authenticity of creative expressions. To maintain originality, copyright laws provide incentives to the creative industry to disseminate culturally valuable work.

With the advent and growth of the Internet, the dissemination of visual arts has shifted from the traditional medium to an online setting. As Internet supports the free flow of information, it also allows mass dissemination of artistic work without the owner’s consent. One such technique is embedding of content via in-links. In-linking permits simple viewing, listening to, reading online content of source website on the linking website, without the user having to visit the source website to access this consent. For example, a tweet maybe displayed on news blogs via in-links.  

The process of embedding content has been challenged in courts on grounds of copyright violation, since creator’s content is in-linked on various platforms without their permission. In such situations, defendants usually use the “Server Test” defence to escape copyright infringements. The ‘server test’ doctrine was developed in the US, where courts believed that embedding did not violate rights of the copyright owner. However, recently, courts have been deflecting from this logic to be true to the text of the statute.

 In light of such contradictory positions, this article briefly discusses the legal validity of the server rule (‘the rule’) in context of copyright laws, its repercussions on the creative community.  It puts forward suitable alternatives to address opposing arguments. Finally, the article concludes with the stance that the rule is harmful to the creative industry.

The Rule and its Legal Validity

As per the US Copyright laws (‘U.S.C’), a direct copyright infringement claim requires establishment of valid copyright ownership and violation of the exclusive rights granted. A copyright owner has the exclusive right to “perform” and “display” their original work publicly. Under section 101 the term “display” means to show a copy of work directly or through any other device or process.

In this regard, the rule as applied in the Perfect 10 v. Amazon case, gives an internet specific interpretation of the term “performance” and “display”. The rule holds that exhibition of a third party’s content on a website by embedding does not violate owner’s exclusive right of display unless the content has been copied or stored to the website’s server. Thus, the act of public display requires possession of a copy of the infringed work.

Moreover, under the rule, direct or secondary infringement claims cannot be brought against content embedded from an authorised source, such as a website that has licensed a photograph for display. However, contributory infringement claims can be bought if it is established that despite having actual or constructive knowledge of the infringed content on a third-party website, the linker further circulated it. For example, an image uploaded to Instagram without the photographer’s permission, which is further circulated by the linker on Twitter.  

 While several courts have followed this logic, recent decisions have deviated from it due to statutory inconsistency. In the latest Goldman v Breitbart Network case, defendants embedded tweets that carried unauthorised uploads of plaintiff’s copyrighted photos. On challenge, the defendants relied on the rule. However, the district court rejected the defence, as the legislative history of U.S.C. did not suggest that the physical possession of the copy is necessary for “display” of work. The court analysed Section 101 to conclude that display meant show of work through a certain process and when defendants undertook a process to embed the photo it constituted infringement of the display right. It relied on Supreme Court’s reasoning in American Broadcasting Companies to hold that infringement claims should not hinge on imperceptible technological differences such as whether the photos were stored on webpage’s server.

Scholars in India are silent about the legality of the rule due to dearth of Indian case laws discussing the liability of in-linking. However, if the rule were to apply, the same would not meet the statutory requirement. As per Section 14(c) of the Copyright act, exclusive right of a copyright owner involves right to reproduce, issue copies and communicate to public. Section 2(ff) defines “communication to public” as making work available through means of display.  Hence, making the creator’s work accessible via in-link display is enough to violate the exclusive right of communication to the public. Thus, the rule is at a weak footing as per the US and Indian copyright laws.

The Impact of the rule over the Creative Industry

Server rule permits unauthorised use of creator’s content through image sharing, embedding videos in blogs, and framing social media posts in news articles. Even though this permits free flow of information, this rule has jeopardised the creator’s ability to benefit from their online display of work. Creators argue that in-linking websites use their content without permission or payment to retain audience on these platforms. As a result, the traffic from their pages is diverted towards the linking websites depriving them of advertising revenue.

Out of all social media platforms, Twitter ranks first, claiming 59% of embeds. In this regard, people from photography industry claim that unrestricted access to digital images on such platforms deprive them of compensation and licensing fees. This inculcates an attitude among users that unauthorised display of pictures is valid since everything on the Internet is free. However, photographs are granted copyright protection due to its aesthetics and creativity. Consequently, photographers should be allowed to benefit from it.

Moreover, with the onset of Covid-19 pandemic, art galleries have shifted to an online medium of transaction, which makes it necessary for the artists to be a hit online. In such settings, advertisers usually invest in webpages having massive traffic. Platforms, such as You-Tube, require certain number of subscription and viewership for the creator to monetise from their content. However, net-artists struggle to establish their ownership over content as in-linking websites can circulate their content within minutes. Consequently, users get free access to novel writings, music compositions, photos and other brilliant masterpieces from unauthorised websites without commercially contributing towards the creator’s labour and skill.

Thus, the rule leaves creators without legal remedy. However, artists’ believe rare art is valuable and must be protected at all costs. Against this backdrop, it is imperative to re-visit the very basis of copyright laws. They aim to protect expressions, which reflect artist’s creativity and set him/her apart from the rest. From an economic point of view, copyright grants marketable right to use of expressions, and provides economic incentives to disseminate these expressions.  It grants authors limited monopoly to be able to benefit from their authentic work. The preference of authenticity defines an individual and establishes them in the visual art market. Apart from these factors, other equally important non-economic factors drive individuals towards creativity. Scholars argue that creativity is spurred through personal relationships that creators share with their work. Under moral rights tradition, creator’s work must be respected and not mistreated.

Hence, as the rule absolves embedding parties of their liability, it destroys the very existence of visual arts in a virtual setting.

Alternative Solutions

Over the years, companies have used the rule as a shield to establish successful business models that provide entertainment and enable communication among the public. Opponents argue that striking down the rule will have chilling effect on the dissemination of content over the Internet. However, the appalling lack of information regarding copyright laws compels companies to be oblivious towards creator’s rights.

To protect one from online exploitation, one should make use of technological protocols that prevent display of work via in-links. Media platforms should revamp their terms of service such that content creators’ posts cannot be embedded without permission or cannot be repurposed without sharing advertising revenue. Websites should modify user interface so that embedded links directly takes users to the original source where they can contribute towards licenses, subscriptions etc.  Further, copyright owners can utilise the notice and takedown system introduced by the US Digital Millennium Copyright Act to notify Internet service provider to expeditiously take down infringing content. However, infringement claims are global and thus more countries should introduce similar enactments.

Such alternative measures will work both ways – Companies can stream authorised content and creators can generate revenue from the same.


The Server rule has spawned the ideology that content available on the Internet is always free, and thus permits unauthorised circulation of content via in-links. Application of this rule deprives creators of their means of revenue and leads to the diminution of creative output. The above analysis also establishes that the rule falls short of statutory requirement to protect the owner’s exclusive “right to display” their content. Additionally, with virtual businesses becoming the new normal, it is imperative to re-examine the policy surrounding embedding content and generate awareness among the public that Internet serves as means of livelihood for the creative community.

Unless the rule is declared invalid, it is incumbent upon the users to protect creative works since art can speak a thousand words.

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