THE NASCENT SHOWDOWN BETWEEN THE NINTH CIRCUIT’S SERVER TEST AND ITS DETRACTORS
David A. Sergenian
(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.