サーバーテストは、パーフェクト10事件において示され、その後、米国第9巡回区控訴裁判所(court of appeals for the ninth circuit)における控訴審でも是認された考え方です。

直接的には、インラインリンクが米国著作権法106条(5)の公の展示(=to display the copyrighted work publicly)に含まれるか、解釈が問題となりました。


(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly;





i. The Server Test Embraced by Google・Googleから主張されたサーバーテスト

From a technological perspective, one could define “display” as the act of serving content over the web—i.e., physically sending ones and zeroes over the internet to the user’s browser.


Adopting this definition, as Google urges the Court to do, would be the entity that “displays” the Pelé image, and would not risk liability for direct infringement (regardless of whether its in-line linking would otherwise qualify as fair use).




ii. The Incorporation Test Embraced by P10

From a purely visual perspective, one could define “display” as the mere act of incorporating content into a webpage that is then pulled up by the browser—e.g., the act by of using an in-line link in its webpage to direct the user’s browser to retrieve the Pelé image from’s server each time he navigates to


P10 urges the Court to adopt this definition.


Under it,, as the host of its own webpage which incorporates the Pelé photo from, would be the entity that “displays” that image.



As opposite ends of a spectrum, the server and incorporation tests both are susceptible to extreme or dubious results.


Under the server test, someone could create a website entitled “Infringing Content For All!” with thousands of in-line links to images on other websites that serve infringing content. That website, however, would be immune from claims of directinfringement because it does not actually serve the images.


 On the other hand, under the incorporation test, any website that in-line links to or frames third-party content would risk liability for direct infringement (putting aside the availability of an affirmative defense) even if that website discloses the identity of the actual server of the image.


Thus, would expose itself to suit for direct infringement even if the text of its webpage had stated:

ATTENTION FBI: We did not take the picture, and it is not served by It is probably subject to copyright. We maintain this site to help authorities identify potentially infringing images on the web. The image of Pelé is stored on and served by Please investigate.


To adopt the incorporation test would cause a tremendous chilling effect on the core functionality of the web—its capacity to link, a vital feature of the internet that makes it accessible, creative, and valuable.




iv. “Display” for Purposes of Full Size Images

The Court concludes that in determining whether Google’s lower frames are a “display” of infringing material, the most appropriate test is also the most straightforward: the website on which content is stored and by which it is served directly to a user, not the website that in-line links to it, is the website that “displays” the content. Thus, the Court adopts the server test, for several reasons.

First, this test is based on what happens at the technological-level as users browse the web, and thus reflects the reality of how content actually travels over the internet before it is shown on users’ computers. Persons who view the full-size “image in its original context” (i.e., the lower frame) after clicking on one of the thumbnails that Google Image Search aggregated, are not viewing images that Google has stored or served. Rather, their computers have engaged in a direct connection with third-party websites, which are themselves responsible for transferring content.

Second, adoption of the server test neither invites copyright infringing activity by *844 a search engine such as Google nor flatly precludes liability for such activity. This test will merely preclude search engines from being held directly liable for in-line linking and/or framing infringing content stored on third-party websites. Copyright owners may still seek, as P10 does, to impose contributory or vicarious liability on websites for the inclusion of such content. Such secondary liability will require analysis of the different set of factors discussed in Section III.B.3 of this Order.

Third, websitd operators can readily understand the server test and courts can apply it relatively easily. To be sure, the incorporation test, which would have courts look at the URL displayed in the browser’s address bar, also can be applied relatively easily. But that test fails to acknowledge the interconnected nature of the web, both in its physical and logical connections and in its ability to aggregate and present content from multiple sources simultaneously.

Fourth, here the initial direct infringers are the websites that stole P10’s full-size images and posted them on the internet for all the world to see. P10 would not have filed suit but for their actions.

Finally, the server test maintains, however uneasily, the delicate balance for which copyright law strives—i.e., between encouraging the creation of creative works and encouraging the dissemination of information. Merely to index the web so that users can more readily find the information they seek should not constitute direct infringement, but to host and serve infringing content may directly violate the rights of copyright holders.

Applying the server test, the Court concludes that for the purposes of direct copyright infringement, Google’s use of frames and in-line links does not constitute a “display” of the full-size images stored on and served by infringing third-party websites. Thus, P10’s claim of direct infringement with respect to these actions will likely fail.

c. “Display” for Purposes of Thumbnails

Applying the server test to Google’s use of thumbnails the Court finds that Google does “display” thumbnails of P10’s copyrighted images. Google acknowledges that it creates and stores those thumbnails on its own servers—and that upon receiving search queries, it responds by displaying a grid of those thumbnails.



d. What Constitutes a “Public Distribution”?

The foregoing considerations also inform whether Google directly infringes P10’s distribution right. With respect to P10’s full-size images, Google does not. A distribution of a copyrighted work requires an “actual dissemination” of copies. See In re Napster, Inc. Copyright Litigation, 377 F. Supp. 2d 796, 802-804 (N.D.Cal. 2005); accord Nimmer § 8.11[A]. In the internet context, an actual dissemination means the transfer of a file from one computer to another. Although Google frames and in-line links to third-party infringing websites, it is those websites, not Google, that transfer the full-size images to users’ computers. Because Google is not involved in the transfer, Google has not actually disseminated—and hence, and has not distributed—the infringing content. See In re Napster, 377 F.Supp.2d at 802-804 (N.D.Cal.2005) (finding that Napster had not “distributed” songs in light of the fact that the “infringing works never resided on the Napster system,” and therefore, Napster could not have transferred copyrighted content to its users). Accordingly, the Court concludes that by merely framing and in-line linking to third-party *845 websites, Google has not “distributed” infringing copies of P10’s copyrighted full-size photographs.[11]