Quote:
Originally Posted by react
Google/Perfect 10:
The court adopted the ?server test" and held that a site that in-line links to another does not itself ?display? the content for copyright purposes. Among the reasons given for its determination is that the "server test" is more technologically appropriate and better reflects the reality of how content travels over the Internet.
Further, it viewed the "server test" as liability ?neutral.? Application of the test doesn?t invite infringing activities by search engines, nor does it preclude all liability. It would, more narrowly, ?preclude search engines from being held directly liable for in-line linking and/or framing infringing content stored on third-party websites.?
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Precedent matters, yes -- but only to the extent that the facts of the case which produced that precedent are actually on-point with respect to the facts of the instant case.
Do you think it's possible that the court might find a substantive difference between a site like Google, which returns algorithmic search results based on queries submitted by third parties, and a site that
specifically scrapes sexually-explicit material, and
only sexually-explicit material, without any need for input from third parties at all?
I think it's possible the court will see a fundamental distinction there. As your second paragraph above notes, the court said the server test precludes
search engines from being held directly liable; whatever else it might be, it is my understanding that boneprone.com is not a search engine.
If the court had stated it as "preclude user-generated content sites" instead of "search engines," I think you'd have a better argument that the precedent is on-point here. I think the court meant for the scope of its holding to apply quite specifically to search engines, and not to just any site that links to/displays visual depictions.
It's also my understanding that the sites at issue in this case do not have a registered DMCA agent, nor do they offer the contact information for such an agent. If you want your site(s) to benefit from the safe harbor delineated under section 512, not designating an agent for those sites might not be the wisest course of action.