The Server Test and Substantial Similarity: Assessing the Second and Ninth Circuit’s Divergent Approaches to Copyright Law
June 4, 2026 – Podcast
New York City Bar Association
Barry Werbin, counsel and member of Herrick's Intellectual Property and Technology Department, participated in a podcast produced by the New York City Bar Association’s Copyright & Entertainment Law Committees titled "The Server Test and Substantial Similarity: Assessing the Second and Ninth Circuit’s Divergent Approaches to Copyright Law."
In this episode, a panel of attorneys discussed recent and emerging case law and the Second and Ninth Circuits’ divergent approaches to analyzing substantial similarity, a key element of copyright infringement, as well as the ongoing debate surrounding the Server Test, which addresses whether the posting of online content constitutes a “display” within the meaning of the Copyright Act.