work on a computer network should not be viewed as sufficient to establish a copyright
infringement.^688 Accordingly, the court ruled that the defendants were entitled to summary
judgment on the issue of direct liability on Napster’s part by virtue of its index.^689 However,
note that the Ninth Circuit’s earlier decision in Napster I held that “Napster users [as opposed to
Napster itself] who upload files names to the search index for others to copy violate plaintiff’s
distribution rights.”^690
In Perfect 10 v. Google,^691 discussed in detail in Section II.C.4 above, the district court
ruled that Google did not publicly distribute infringing copies of Perfect 10’s copyrighted images
that could be located through the Google Image Search function. “A distribution of a
copyrighted work requires an ‘actual dissemination’ of copies. ... In the internet context, an
actual dissemination means the transfer of a file from one computer to another. Although
Google frames and in-line links to third-party infringing websites, it is those websites, not
Google, that transfer the full-size images to users’ computers [upon clicking on a thumbnail
version of the image displayed in the Google search results]. Because Google is not involved in
the transfer, Google has not actually disseminated – and hence, [] has not distributed – the
infringing content.”^692
On appeal, the Ninth Circuit affirmed this ruling. Because Google’s search engine
communicated only HTML instructions telling a user’s browser where to find full size images on
web site, and Google did not itself distribute copies of the infringing photographs, Google did
not have liability for infringement of the right of distribution with respect to full size images that
could be located and displayed through the Image Search function.^693 Perfect 10 argued that,
under the Napster I and Hotaling cases discussed above, the mere making available of images
violates the copyright owner’s distribution right. The Ninth Circuit held that this “deemed
distribution” rule did not apply to Google, because, unlike the users of the Napster system or the
library in Hotaling, Google did not own a collection of stored full size images that it made
available to the public.^694
(^688) Id. at 804-05.
(^689) Id. at 805. The court held, however, that the plaintiffs had submitted sufficient evidence of direct infringement
by Napster’s users in the form of a showing of massive uploading and downloading of unauthorized copies of
works, together with statistical evidence strongly suggesting that at least some of the plaintiffs’ copyrighted
works were among them. Id. at 806. “It may be true that the link between such statistical evidence of copyright
infringement and the uploading or downloading of specific copyrighted works is at the moment a weak one.
However, to avoid summary judgment, plaintiffs need only establish that triable issue of material fact preclude
entry of judgment as a matter of law. ... Here in particular, the court is mindful of the fact that the parties have
not even completed discovery relating to issues of copyright ownership and infringement.” Id. at 806-07.
(^690) A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014 (9th Cir. 2001).
(^691) 416 F. Supp. 2d 828 (C.D. Cal. 2006), aff’d sub nom. Perfect 10 v. Amazon.com, Inc., 508 F.3d 1146, 1169 (9th
Cir. 2007).
(^692) Id. at 844 (citing In re Napster, Inc. Copyright Litigation, 377 F. Supp. 2d 796, 802-04 (N.D. Cal. 2005)).
(^693) Perfect 10 v. Amazon.com, Inc., 508 F.3d 1146, 1162 (9th Cir. 2007).
(^694) Id. at 1162-63. Cf. National Car Rental Sys. v. Computer Assocs. Int’l, Inc., 991 F.2d 426, 434 (8th Cir. 1993)
(stating that infringement of the distribution right requires the actual dissemination of copies or phonorecords).