The proposition that a party who links online to third-party materials cannot be a direct copyright infringer was bolstered by the 9th Circuit validating what is known as the “server test” four years ago in Perfect 10, Inc. v. Amazon.com, Inc. The server test focuses on the location of infringing material, but is the actual conduct of the alleged infringing party more important than the physical location of infringing material? This is the question that the 7th Circuit will answer in its review of the Northern District of Illinois’ decision in Flava Works, Inc. v. Gunter.
The server test addresses what it means to “display” a work for purposes of the Copyright Act. The test contrasts “a computer owner that stores an image as electronic information and serves that electronic information directly to the user (i.e., physically sending ones and zeroes over the [I]nternet to the user's browser,)” with a computer owner “that does not store and serve the electronic information to a user.” Perfect 10, 508 F.3d at 1159 (citations omitted). The first computer owner would be liable for direct infringement for displaying the electronic information in violation of a copyright holder's exclusive display right whereas the second computer owner would not be displaying that information, “even if such owner in-line links to or frames the electronic information.” Id.