The Copyright Act gives a copyright owner the exclusive right to publicly display the work.
In Perfect 10 v. Amazon, the Ninth Circuit Court of Appeals held that a website is liable for unauthorized public display of a coprighted work only if the image is stored on the website’s server. The court reasoned that “display” means showing a copy of the work. To show a copy, it is necessary to possess one. But it is not necessary for a website owner to possess a copy of a work to write code that instructs a user’s browser to display the content of a file that is hosted somewhere else. Therefore, encoding a website to instruct a user’s browser to display as an embedded image a copy of a work that is hosted on a different server does not infringe the copyright owner’s public display right.
That case involved the display of images in search engine results. Astute readers with remarkably good memories will recall that I have previously written about a case that extended the “server test” announced in Perfect 10 to social media. Specifically, a district court held that directing a user’s browser to an image that is hosted on Instagram’s server does not constitute “display” of the image. Since no direct infringement by means of “public display” occurred, Instagram could not be held secondarily liable for contributing to the unauthorized public display of the image. The Ninth Circuit has since affirmed the decision. See Hunley v. Instagram. I described this as one of the “Top Copyright Cases of 2022.”
As I indicated in that article, a Ninth Circuit affirmance could result in a circuit split. It has.
In McGucken v. Newsweek, LLC, a court in the Second Circuit held that Newsweek publicly displayed another person’s copryighted photograph when it embedded the photograph from the copyright owner’s Instagram page. The photograph was hosted on Instagram’s server, not Newsweek’s. And in Nicklen v. Sinclair Broadcast Group, a New York court explicitly rejected the server test, declaring that it is “contrary to the text and legislative history of the Copyright Act.” Of course, these were district court decisions, not decisions of Circuit Courts of Appeals, so they would not suffice to create a “circuit split.” A recent case out of the Fifth Circuit, however, might. That case is Emmerich Newspapers v. Particle Media.
Emmerich Newspapers v. Particle Media
Particle Media runs NewsBreak, a news aggregator that embeds stories from various news media into a single feed. When a user clicked on an Emmerich story, it opened in a frame that loaded the Emmerich page from Emmerich’s server on the user’s browser. Emmerich filed a copyright infringement lawsuit claiming that Particle Media violated its exclusive aright to publicly display the work.
The district court applied the server test, holding that the framed view of the story did not infringe Emmerich’s exlcusive right to publicly display the work. The Fifth Circuit Court of Appeals rejected the server test.
The Transmit Requirement
For the Fifth Circuit, the inquiry should not be into who possesses a copy of the work, but who transmits it. In many cases, including this one, the outcome will be the same. Emmerich’s story was neither stored on Particle Media’s server nor transmitted by it. Therefore, under either test, it was not liable.
URLs as Copyright Management Information
A second issue raised in Emmerich Newspapers is whether a website URL is a kind of “copyright management information” (CMI) under the Digital Millennium Copyright Act (DMCA). If it is, then removing it would violate the DMCA.
So is it or isn’t it? Well, possibly yes and possibly no. It depends on whether a person looking at the URL would understand it as identifying the work or its owner, on one hand, or as idenfiying only a website address, on the other.
The Fifth Circuit Court of Appeals did not resolve the issue in this case. Instead, it remanded it to the district court to decide. Nevertheless, the decision establishes a precedent that a URL, in principle, can be copyright manamgement information for purposes of the DMCA.
Is There Really a Circuit Split?
The Fifth Circuit clearly rejected the Ninth Circuit’s server test. On the other hand, though, both circuits agree that embedding generally does not infringe the copyright owner’s public display right. They disagree about the rationale, but the result is the same. That might not be enough for the Supreme Court to perceive a need to resolve a circuit split.
Conclusion
When assessing the public display right in the embedding context, some courts will apply the server test. Others will apply the transmit requirement. In most cases, merely encoding a website to instruct a third-party server to display content in a user’s browser will not result in liability for infringement of the copright owner’s public display right under either test.
Websites that deploy embedding, however, have reason to be careful about stripping the URL from embedded content. If the URL is perceived as identifying a work or its author, stripping it from the embedded display could violate the DMCA.
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