- ICG-Internet Commerce Group, Inc. v. Wolf
In ICG-Internet Commerce Group, Inc. v. Wolf,^635 the court held that the defendant had
infringed the plaintiff’s copy and public display rights in an adult video by posting the video to
the defendant’s web site. The court also ruled that the insertion into the plaintiff’s video of a
URL link to the defendant’s web site constituted the creation of an infringing derivative work.^636
- Perfect 10 v. Yandex
In Perfect 10, Inc. v. Yandex, N.V.,^637 Yandex operated image search engines at
Yandex.ru, whose servers were located in Russia, and Yandex.com, whose servers were located
in the U.S. Yandex.ru was Russia’s most popular search engine and the fourth largest search
engine worldwide. The search engines did not store any full-sized images that its crawlers
located, but rather stored only lower-resolution thumbnails of the images. Yandex reproduced its
thumbnail copies on search results pages so that a user making a search query could determine
which, if any, thumbnails were of interest and then click through to the third party web site that
hosted the full-sized image. When the user clicked on a link, the full-size source image was
displayed via in-line linking in the same browser window without including other parts of the
surrounding third-party web page on which the full-sized image appeared. Thumbnails of
several thousand unauthorized Perfect 10 images were stored on Yandex’s search engine servers
and Perfect 10 sued for direct, contributory and vicarious copyright infringement. Yandex
moved for summary judgment on several issues.^638
Turning first to the issue of direct liability, the court noted that of the 63,756 alleged
infringements to which Yandex.ru and Yandex.com linked in search results, 51,959 of them were
hosted on servers located outside the U.S. The court noted that under the Ninth Circuit’s “server
test” adopted in the Perfect 10 v. Amazon case, the hosting web site’s computer, rather than the
search engine’s computer, is the situs of direct infringement, and Yandex could therefore have no
liability for direct infringement under U.S. copyright law with respect to those images hosted
outside the U.S. The court rejected Perfect 10’s argument that Yandex committed direct
infringement by display in the U.S. of images hosted outside the U.S. because users in the U.S.
could download them. Nowhere in the Amazon decision did the Ninth Circuit endorse the idea
that display of a copyrighted image anywhere in the world creates direct copyright liability in the
U.S. merely because images could be downloaded from a server abroad by someone in the U.S.
The court observed that such a principle would destroy the concept of territoriality inhering in
the Copyright Act for works on the Internet. The court found more plausible Perfect 10’s
argument that, when Yandex’s servers were located in the U.S. for a nine-month period, a
Yandex.com image search performed by a server in the U.S. could have linked to a Perfect 10
imaged hosted on a Yandex server in Russia. The court, however, found it unnecessary to
address the validity of the argument because Perfect 10 had not demonstrated that Yandex in fact
(^635) 519 F. Supp. 2d 1014 (E.D. Pa. 2007).
(^636) Id. at 1018.
(^637) 962 F. Supp. 2d 1146 (N.D. Cal. 2013).
(^638) Id. at 1150-51, 1155.