Advanced Copyright Issues on the Internet - Fenwick & West LLP

The district court concluded that the server test was the most appropriate one fordetermining whether Google’s lower frames were a “display” of infringing material. The courtarticulated several reasons for adopting the server test. First, it is based on what happens at thetechnological level as users browse the web, and thus reflects the reality of how content actuallytravels over the Internet before it is shown on users’ computers. Second, it precludes searchengines from being held directly liable for in-line linking and/or framing infringing contentstored on third party web sites, but allows copyright owners still to seek to impose contributoryor vicarious liability on web sites for including such content. Third, web site operators canreadily understand the server test and courts can apply it relatively easily. Fourth, in the instantcase, it imposes direct liability on the web sites that took Perfect 10’s full size images and postedthem on the Internet for all to see. Finally, the server test promotes the balance of copyright lawto encourage the creation of works by protecting them while at the same time encouraging thedissemination of information. The server test would avoid imposing direct liability for merelyindexing the web so that users can more readily find the information they seek, while imposingdirect liability for the hosting and serving of infringing content. 300Applying the server test, the district court ruled that for purposes of direct infringement,Google’s use of frames and in-line links did not constitute a “display” of the full size imagesstored on and served by infringing third party web sited, but Google did “display” the thumbnailsof Perfect 10’s copyrighted images because it created, stored, and served those thumbnails on itsown servers. 301On appeal, the Ninth Circuit agreed with the district court that the “server” test should beused to determine which entity displays an image on the web, concluding that the test wasconsistent with the statutory language of the copyright statute. Under that test, Perfect 10 hadmade a prima facie case that Google’s communication of its stored thumbnail images directlyinfringed Perfect 10’s display rights. However, Google had not publicly displayed a copy of thefull size infringing images when it framed in-line linked images that appeared on a user’scomputer screen. 302 The Ninth Circuit found that Google’s activities with respect to the full sizeimages did not meet the statutory definition of public display “because Google transmits orcommunicates only an address which directs a user’s browser to the location where a copy of thefull-size image is displayed. Google does not communicate a display of the work itself.” 303 Thecourt also ruled that, because Google’s cache merely stored the text of web pages, and not theimages themselves, Google was not infringing the display right by virtue of its cache. 304Fair Use. The district court evaluated Google’s assertion of the fair use defense to thedisplay of the thumbnails. With respect to the first fair use factor, the purpose and character ofthe use, the court found that Google’s display of the thumbnails was a commercial use, sinceGoogle derived significant commercial benefit from Google Image Search in the form of300301302303304Id. at 843-44.Id. at 844.Perfect 10 v. Amazon.com, Inc., 508 F.3d 1146, 1159-60 (9 th Cir. 2007).Id. at 1161 n.7.Id. at 1162.- 79 -