The Nascent Showdown Between the Ninth Circuit’s Server Test and Its Detractors

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The Nascent Showdown Between the Ninth Circuit’s Server Test and Its Detractors

New Matter - Volume 46, Number 4, 2021

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IP_Vol46_No4_2021

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Category: Intellectual Property Law

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In 2007, the Ninth Circuit addressed a novel issue: whether a defendant website violates a copyright holder’s exclusive right to display a copyrighted work by “in-line linking” to an image that resides on another entity’s website. The Ninth Circuit answered in the negative, holding that although in-line linking may give the copyright holder a claim for contributory infringement, the text of the Copyright Act does not support a claim for direct infringement under such a set of facts because the infringing image is not found on the computers of the website that in-line links to the image on another entity’s website. The Ninth Circuit referred to its analysis as the “server test,” and it went largely unchallenged for a decade.

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