Since 2007, when the Ninth Circuit adopted the 'server test' in Perfect 10, Inc v Amazon.com, Inc,1 companies and individuals sued for copyright infringement have relied on its holding that whether a website publisher is directly liable for copyright infringement turns on whether the image is hosted on the publisher's own server or is embedded or linked from a third-party server.
Earlier this year, two photographers filed a copyright infringement suit against Instagram challenging the server test.2Instagram's motion to dismiss the suit - and potentially, protect its and other media companies' business models - hinges on the viability of the server test as a defence to such claims.
In Perfect 10, the plaintiff, a subscription website for images of nude models, alleged that Google and Amazon infringed its copyrights because (1) Google's search engine results included reduced-sized, lower resolution "thumbnail" versions of its original images, and (2) Google's business agreement with Amazon permitted Google's search engine to send search results, including the plaintiff's original images, to Amazon's customers.
The Ninth Circuit found that (1) the thumbnails were infringing based on the fact that they were stored on Google's server, and (2) the full-size original images, which were...
