Intellectual Property Law

New Matter WINTER 2021, VOLUME 46, EDITION 4

THE NASCENT SHOWDOWN BETWEEN THE NINTH CIRCUIT’S SERVER TEST AND ITS DETRACTORS

David A. Sergenian
Sergenian Law

INTRODUCTION

(See end of this article for information on receiving 1.0 hour MCLE self-study credit. )

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.1 The Ninth Circuit referred to its analysis as the "server test," and it went largely unchallenged for a decade.

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