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Server Test Lives on in Utah

Posted by James Juo | May 12, 2023 | 0 Comments

Under the Ninth Circuit's “server” test, if a party displayed a copyrighted image that it had stored on its own systems, then it had infringed; but if it displayed that image by merely linking or framing content from other websites, then it was not infringement. See, e.g., Perfect 10, Inc. v., Inc., 508 F.3d 1146 (9th Cir. 2007).

Importantly, “the owner of a computer that does not store and serve the electronic information to a user is not displaying that information, even if such owner inline links to or frames the electronic information.” Perfect 10, 508 F.3d at 1159. Such assistance would not constitute direct infringement of the copyright owner's display rights. Id. at 1161; see also Flava Works, Inc. v. Gunter, 689 F.3d 754, 757 (7th Cir. 2012) (finding no copyright infringement because the provider had not copied the video onto its system); Grady v. Iacullo, No. 13-cv-00624, 2016 WL 1559134, at *7 (D. Colo. Apr. 18, 2016) (noting “[t]he problem for plaintiff is that merely because defendant, in some manner, shared plaintiff's photographs and videos does not necessarily mean that defendant copied the same in a way that infringes plaintiff's copyrights”).

That being said, the continued viability of the “server” test is the subject of appeal at the Ninth Circuit in two cases: Miller v. 4Internet, LLC, No. 2:18-cv-02097, 2022 WL 2438815 (D. Nev. July 5, 2022), appeal filed Aug. 9, 2022; and Hunley v. Instagram, No. 21-cv-03778, 2022 WL 298570 (N.D. Cal. Feb. 1, 2022), appeal filed Mar. 1, 2022.

District of Utah

Nonetheless, the District of Utah recently endorsed the “server” test in Great Bowery v. Best Little Sites, No. 21-cv-00567-DBB-JCB, 2023 WL 3212619 (D. Utah May 2, 2023).

Users of (“CBM”) allegedly embedded into the site by linking to the images hosted on third-party sites. After learning of the links from the lawsuit's complaint, CBM disabled them.

The Utah court noted that the server test “offers a straightforward, bright-line test for determining whether images displayed on a website violate the Copyright Act.”

Applied here, if the Subject Images were not stored on CBM Defendants' servers or on servers that they controlled, then CBM Defendants have a possible defense to infringement.

The court concluded that “the ‘display' of the images on CBM's website—even through the process of embedding—did not automatically create infringement.”

In addition, the court noted that to guard against infringement, the copyright owner “could take down the image or employ restrictions such as paywalls.”

Other District Courts

Other district courts, however, have questioned the “server” test's applicability to embedding.

In Goldman v. Breitbart News Network LLC, 302 F. Supp. 3d 585, 594 (S.D.N.Y. 2018), the court found that embedding a Tweet onto a website was infringement. Distinguishing Perfect 10, the Goldman court noted that the “defendant itself took active steps to put a process in place that resulted in a transmission of the photos so that they could be visibly shown.”

And, in Nicklen v. Sinclair Broadcasting Group, Inc., 551 F. Supp. 3d 188, 195 (S.D.N.Y. 2021), the Southern District of New York further reasoned that the “server” test applied only for search engines where users could see an image once they clicked a hyperlink. The court concluded that to “‘show a copy' is to display it[,]” even if a party did not store it.

Also, in Leader's Institute, LLC v. Jackson, No. 14-cv-3572, 2017 WL 5629514, at *11 (N.D. Tex. Nov. 22, 2017), the defendant's website directed a user's browser to display the copyright holder's website; and the defendant did not have reproductions of the copyrighted material. Even so, the Northern District of Texas found that the defendant “displayed [the copyright holder]'s content as if it were its own.” The court compared the defendant's actions to a person live-streaming a movie in a theater without permission.

The attorneys at Thomas P. Howard, LLC litigate copyright cases nationwide including in Colorado.

About the Author

James Juo

James Juo is an experienced intellectual property attorney. He has successfully litigated various intellectual property disputes involving patents, trademarks, copyrights, and trade secrets. He also has counseled clients on the scope and validity of patent and trademark rights.


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