Now on Display: In-Line Linking in the Age of the Server Test

April 1, 2023

In 2007, the U.S. Court of Appeals for the Ninth Circuit adopted a new interpretation of 17 U.S.C. § 106(5), which codifies the display right of the Copyright Act of 1976.  In Perfect 10 v., the Ninth Circuit read § 106(5) to mean that creative works made visible on web pages through in-line linking, an architectural pillar of modern web design, would not infringe on a copyright owner’s display right if the work was not actually copied onto the website’s server.  Since its adoption, this approach—known as the Server Test—has been lauded by search engine providers and web developers, critiqued by scholars and copyright holders, circumvented by the U.S. Court of Appeals for the Seventh Circuit, and even flatly rejected by the U.S. District Courts for the Northern District of Texas and the Southern District of New York.

Chronicling the histories of the display right and the World Wide Web, as well as the Server Test’s serpentine path to settled law in the Ninth Circuit, this Note hails the Server Test as a valuable device for engaging with the mechanics of in-line linking and defining the display right.  Despite acknowledging its value, this Note proposes that the Server Test incorrectly places the act of infringement at the server level.  Instead, this Note suggests that the Server Test be reconfigured into a new test, called the “Display Test,” that guides courts and litigants through a three-step inquiry to more accurately locate where and how content is displayed.  The Display Test asks (1) what is being shown and where that work is stored (i.e., the Server Test); (2) to whom the work is displayed and whether it is shown to the public; and (3) who caused the work to be displayed, thereby balancing the interests of users, owners, and web developers.  The Display Test also narrowly defines “copy” and “public” for the purposes of the display right, as distinct from the performance or copy rights.  The Display Test may better balance the realities of modern web use with the development of the display right as a flexible tool that can accommodate future technological innovation.

April 2023

No. 5