Embedding And The "Server Test" Survive In The Ninth Circuit…For Now

The Ninth Circuit has ruled that its "server test" allows for copyrighted content to be embedded on another's website without violating U.S. copyright law, the copyright owner's public display right in particular. 17 U.S.C. § 106(5). Why? Because embedding does not involve storing the copyrighted content on the website owner's computer or server, it merely provides instructions to a web browser to show content stored on the host website. The decision could be short-lived, however, as the three-judge panel noted several times that its ruling was required by existing Ninth Circuit precedent that could not be overruled outside of an en banc proceeding. The two photographers who brought the case, Alexis Hunley and Matthew Scott Brauer, have already accepted the panel's invitation and have been granted until August 28th to file a petition for en banc review.