page on which the original image was found. Google neither stored nor served any of the
content displayed in the lower frame, which was stored and served by the underlying third party
web site containing the original image.^566 Perfect 10 brought claims against Google for direct,
vicarious and contributory copyright infringement.
Direct Infringement Claims. Perfect 10 alleged that Google directly infringed its
copyrights by displaying and distributing the full size images hosted by third party web sites, and
by creating, displaying and distributing thumbnails of its copyrighted full size images. Google
conceded that it created and displayed thumbnails, but denied that it displayed, created, or
distributed what was depicted in the lower frame of search results displays, which were
generated via in-line links to third party sites storing the original images of interest.^567
The district court began with a consideration of how “display” should be defined in the
context of in-line linking, noting that two approaches were possible: (1) a “sever” test, in which
display is defined as the act of serving content over the web, i.e., physically sending bits over the
Internet to the user’s browser, and (2) an “incorporation” test, in which display is defined as the
mere act of incorporating content into a web page that is then pulled up by the browser through
an in-line link. Under the server test, advocated in the case by Google, the entity that should be
deemed liable for the display of infringing content is the entity whose server served up the
infringing material. Under the incorporation test, advocated by Perfect 10, the entity that should
be deemed liable for the display of infringing content is the entity that uses an in-line link in its
web page to direct the user’s browser to retrieve the infringing content.^568
The district court reviewed the existing decisions dealing with the question of whether
linking constitutes infringing “displaying” of copyrighted material. The court noted that in the
Webbworld and Hardenburg cases,^569 the material was stored on the defendant’s servers, and in
the Perfect 10 v. Cybernet Ventures case,^570 it was unclear whether the defendant stored or
served any of the infringing content. The court further noted that the Ninth Circuit had
withdrawn its opinion in Kelly v. Arriba Soft^571 adopting the incorporation test in the face of
widespread criticism of that decision. The court therefore found that none of these cases, or any
other existing precedent, resolved the question before it.^572
The district court concluded that the server test was the most appropriate one for
determining whether Google’s lower frames were a “display” of infringing material. The court
articulated several reasons for adopting the server test. First, it is based on what happens at the
technological level as users browse the web, and thus reflects the reality of how content actually
(^566) Id. at 833-34.
(^567) Id. at 838.
(^568) Id. at 838-40.
(^569) These cases are discussed in Section II.C.1 above.
(^570) This case is discussed in Section II.A.4(k) above.
(^571) This case is discussed in Section II.C.2 above.
(^572) 416 F. Supp. 2d at 840-43.