BRIEF OF AMICI CURIAE ELECTRONIC FRONTIER FOUNDATION, COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION, AMERICAN LIBRARY ASSOCIATION, ASSOCIATION OF RESEARCH LIBRARIES, AND AUTHORS ALLIANCE IN SUPPORT OF DEFENDANT-APPELLEE AND AFFIRMANCE

Abstract

Seventeen years ago, this Court adopted an accurate and practical application of the Copyright Act’s public display right to images on the internet. In Perfect 10, Inc. v. Amazon.com, Inc., the Court held that the owner of a web server that actually transmits an image to users can be directly liable for the public display of that image, while the owner of a server that merely directs users to an image hosted elsewhere is, at most, secondarily liable. 508 F.3d 1146, 1160 (9th Cir. 2007). This rule, known as the server test, is consistent with the text and history of the Copyright Act. The server test remains binding precedent in this Circuit. Hunley v. Instagram, LLC, 73 F.4th 1060, 1062 (9th Cir. 2023). Beyond that, the server test has proved to be a workable rule, relied on by millions of people as they use one of the internet’s basic functions—linking information from multiple sources.