FOR PUBLICATION
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`PERFECT 10, INC., a California
`corporation,
`
`Plaintiff-Appellant,
`v.
`AMAZON.COM, INC., a corporation;
`A9.COM INC., a corporation,
`Defendants-Appellees.
`
`
`
`PERFECT 10, INC., a California
`corporation,
`
`Plaintiff-Appellant,
`v.
`GOOGLE INC., a corporation,
`Defendant-Appellee.
`
`
`
`PERFECT 10, INC., a California
`corporation,
`
`Plaintiff-Appellee,
`v.
`GOOGLE INC., a corporation,
`Defendant-Appellant.
`
`No. 06-55405
`D.C. No.
`CV-05-04753-AHM
`
`No. 06-55406
`D.C. No.
`CV-04-09484-AHM
`
`No. 06-55425
`D.C. No.
`CV-04-09484-AHM
`
`5751
`
`(cid:252)
`(cid:253)
`(cid:254)
`(cid:252)
`(cid:253)
`(cid:254)
`(cid:252)
`(cid:253)
`(cid:254)
`

`
`5752
`
`
`
`PERFECT 10 v. AMAZON.COM
`
`PERFECT 10, INC., a California
`corporation,
`
`Plaintiff-Appellant,
`v.
`GOOGLE INC., a corporation,
`Defendant-Appellee.
`
`
`
`PERFECT 10, INC., a California
`corporation,
`
`Plaintiff-Appellee,
`v.
`GOOGLE INC., a corporation,
`Defendant-Appellant.
`
`
`
`PERFECT 10, INC., a California
`corporation,
`
`Plaintiff-Appellee,
`v.
`GOOGLE INC., a corporation,
`Defendant-Appellant.
`
`No. 06-55759
`D.C. No.
`CV-04-09484-AHM
`
`No. 06-55854
`D.C. No.
`CV-04-09484-AHM
`
`No. 06-55877
`D.C. No.
`CV-04-09484-AHM
`OPINION
`
`Appeal from the United States District Court
`for the Central District of California
`A. Howard Matz, District Judge, Presiding
`
`Argued and Submitted
`November 15, 2006—Pasadena, California
`
`Filed May 16, 2007
`
`(cid:252)
`(cid:253)
`(cid:254)
`(cid:252)
`(cid:253)
`(cid:254)
`(cid:252)
`(cid:253)
`(cid:254)
`

`
`PERFECT 10 v. AMAZON.COM
`
`5753
`
`Before: Cynthia Holcomb Hall, Michael Daly Hawkins, and
`Sandra S. Ikuta, Circuit Judges.
`
`Opinion by Judge Ikuta
`
`

`
`PERFECT 10 v. AMAZON.COM
`
`5757
`
`COUNSEL
`
`Russell J. Frackman and Jeffrey D. Goldman, Mitchell, Sil-
`berberg & Knupp LLP, Los Angeles, California, Jeffrey N.
`Mausner, Berman, Mausner & Resser, Los Angeles, Califor-
`nia, Daniel J. Cooper, Perfect 10, Inc., Beverly Hills, Califor-
`nia, for plaintiff-appellant Perfect 10, Inc.
`
`

`
`5758
`
`PERFECT 10 v. AMAZON.COM
`
`Andrew P. Bridges and Jennifer A. Golinveaux, Winston &
`Strawn LLP, San Francisco, California, Gene C. Schaerr,
`Winston & Strawn LLP, Washington, DC, for defendant-
`appellee and cross-appellant Google Inc.
`
`Mark T. Jansen & Anthony J. Malutta, Townsend and Town-
`send and Crew LLP, San Francisco, California,
`for
`defendants-appellees Amazon.com and A9.com, Inc.
`
`Fred von Lohmann, Electronic Frontier Foundation, San Fran-
`cisco, California, for amicus curiae Electronic Frontier Foun-
`dation, American Library Association, Medical Library
`Association, American Association of Law Libraries, Associ-
`ation of Research Libraries, and Special Libraries Association
`in support of Google Inc.
`
`Victor S. Perlman, of counsel, American Society of Media
`Photographers; Nancy E. Wolff, of counsel, Cowan, DeBaets,
`Abrahams & Sheppard, LLP; Robert W. Clarida and Jason D.
`Sanders, Cowan, Liebowitz & Latman, P.C., New York, New
`York, for amicus curiae American Society of Media Photog-
`raphers, Inc., Picture Archive Council of America, Inc.,
`British Association of Picture Libraries and Agencies, Inc.,
`Stock Artists Alliance, The Graphic Artists Guild, American
`Society of Picture Professionals and National Press Photogra-
`phers, in support of Perfect 10 on issue of Google’s liability
`for the display of full-size images.
`
`Eric J. Schwartz and Steven J. Metalitz, Smith & Metalitz
`LLP, Washington, DC, for amicus curiae Motion Picture
`Association of America, Inc. in support of Perfect 10.
`
`Jonathan Band, Jonathan Band PLLC, Washington, DC, for
`amicus curiae NetCoalition, Computer and Communications
`Industry Association, U.S. Internet Service Provider Associa-
`tion, Consumer Electronics Association, Home Recording
`Rights Coalition, Information Technology Association of
`
`

`
`PERFECT 10 v. AMAZON.COM
`
`5759
`
`America, and Internet Commerce Coalition in support of
`Google Inc.
`
`Kenneth L. Doroshow and Linda J. Zirkelbach, Recording
`Industry Association of America, Washington, DC; Jacque-
`line C. Charlesworth, National Music Publishers’ Association,
`Washington, DC; Robert W. Clarida, Richard S. Mandel and
`Jonathan Z. King, Cowan, Liebowitz & Latman, P.C., New
`York, New York, for amicus curiae Recording Industry Asso-
`ciation of America and National Music Publishers’ Associa-
`tion in support of neither party.
`
`OPINION
`
`IKUTA, Circuit Judge:
`
`In this appeal, we consider a copyright owner’s efforts to
`stop an Internet search engine from facilitating access to
`infringing images. Perfect 10, Inc. sued Google Inc., for
`infringing Perfect 10’s copyrighted photographs of nude mod-
`els, among other claims. Perfect 10 brought a similar action
`against Amazon.com and its subsidiary A9.com (collectively,
`“Amazon.com”). The district court preliminarily enjoined
`Google from creating and publicly displaying thumbnail ver-
`sions of Perfect 10’s images, Perfect 10 v. Google, Inc., 416
`F. Supp. 2d 828 (C.D. Cal. 2006), but did not enjoin Google
`from linking to third-party websites that display infringing
`full-size versions of Perfect 10’s images. Nor did the district
`court preliminarily enjoin Amazon.com from giving users
`access to information provided by Google. Perfect 10 and
`Google both appeal the district court’s order. We have juris-
`diction pursuant to 28 U.S.C. § 1292(a)(1).1
`
`1Google argues that we lack jurisdiction over the preliminary injunction
`to the extent it enforces unregistered copyrights. Registration is generally
`a jurisdictional prerequisite to a suit for copyright infringement. See 17
`
`

`
`5760
`
`PERFECT 10 v. AMAZON.COM
`
`The district court handled this complex case in a particu-
`larly thoughtful and skillful manner. Nonetheless, the district
`court erred on certain issues, as we will further explain below.
`We affirm in part, reverse in part, and remand.
`
`I
`
`Background
`
`Google’s computers, along with millions of others, are con-
`nected to networks known collectively as the “Internet.” “The
`Internet is a world-wide network of networks . . . all sharing
`a common communications technology.” Religious Tech. Ctr.
`v. Netcom On-Line Commc’n Servs., Inc., 923 F. Supp. 1231,
`1238 n.1 (N.D. Cal. 1995). Computer owners can provide
`information stored on their computers to other users con-
`nected to the Internet through a medium called a webpage. A
`webpage consists of text interspersed with instructions written
`in Hypertext Markup Language (“HTML”) that is stored in a
`computer. No images are stored on a webpage; rather, the
`HTML instructions on the webpage provide an address for
`where the images are stored, whether in the webpage publish-
`er’s computer or some other computer. In general, webpages
`are publicly available and can be accessed by computers con-
`nected to the Internet through the use of a web browser.
`
`U.S.C. § 411. But section 411 does not limit the remedies a court can
`grant. Rather, the Copyright Act gives courts broad authority to issue
`injunctive relief. See 17 U.S.C. § 502(a). Once a court has jurisdiction
`over an action for copyright infringement under section 411, the court may
`grant injunctive relief to restrain infringement of any copyright, whether
`registered or unregistered. See, e.g., Olan Mills, Inc. v. Linn Photo Co., 23
`F.3d 1345, 1349 (8th Cir. 1994); Pac. & S. Co., Inc. v. Duncan, 744 F.2d
`1490, 1499 n.17 (11th Cir. 1984). Because at least some of the Perfect 10
`images at issue were registered, the district court did not err in determin-
`ing that it could issue an order that covers unregistered works. Therefore,
`we have jurisdiction over the district court’s decision and order.
`
`

`
`PERFECT 10 v. AMAZON.COM
`
`5761
`
`Google operates a search engine, a software program that
`automatically accesses thousands of websites (collections of
`webpages) and indexes them within a database stored on
`Google’s computers. When a Google user accesses the
`Google website and types in a search query, Google’s soft-
`ware searches its database for websites responsive to that
`search query. Google then sends relevant information from its
`index of websites to the user’s computer. Google’s search
`engines can provide results in the form of text, images, or vid-
`eos.
`
`The Google search engine that provides responses in the
`form of images is called “Google Image Search.” In response
`to a search query, Google Image Search identifies text in its
`database responsive to the query and then communicates to
`users the images associated with the relevant text. Google’s
`software cannot recognize and index the images themselves.
`Google Image Search provides search results as a webpage of
`small images called “thumbnails,” which are stored in
`Google’s servers. The thumbnail images are reduced, lower-
`resolution versions of full-sized images stored on third-party
`computers.
`
`When a user clicks on a thumbnail image, the user’s
`browser program interprets HTML instructions on Google’s
`webpage. These HTML instructions direct the user’s browser
`to cause a rectangular area (a “window”) to appear on the
`user’s computer screen. The window has two separate areas
`of information. The browser fills the top section of the screen
`with information from the Google webpage, including the
`thumbnail image and text. The HTML instructions also give
`the user’s browser the address of the website publisher’s com-
`puter that stores the full-size version of the thumbnail.2 By
`
`2The website publisher may not actually store the photographic images
`used on its webpages in its own computer, but may provide HTML
`instructions directing the user’s browser to some further computer that
`stores the image. Because this distinction does not affect our analysis, for
`convenience, we will assume that the website publisher stores all images
`used on its webpages in the website publisher’s own computer.
`
`

`
`5762
`
`PERFECT 10 v. AMAZON.COM
`
`following the HTML instructions to access the third-party
`webpage, the user’s browser connects to the website publish-
`er’s computer, downloads the full-size image, and makes the
`image appear at the bottom of the window on the user’s
`screen. Google does not store the images that fill this lower
`part of the window and does not communicate the images to
`the user; Google simply provides HTML instructions direct-
`ing a user’s browser to access a third-party website. However,
`the top part of the window (containing the information from
`the Google webpage) appears to frame and comment on the
`bottom part of the window. Thus, the user’s window appears
`to be filled with a single integrated presentation of the full-
`size image, but it is actually an image from a third-party web-
`site framed by information from Google’s website. The pro-
`cess by which the webpage directs a user’s browser to
`incorporate content from different computers into a single
`window is referred to as “in-line linking.” Kelly v. Arriba Soft
`Corp., 336 F.3d 811, 816 (9th Cir. 2003). The term “framing”
`refers to the process by which information from one computer
`appears to frame and annotate the in-line linked content from
`another computer. Perfect 10, 416 F. Supp. 2d at 833-34.
`
`Google also stores webpage content in its cache.3 For each
`cached webpage, Google’s cache contains the text of the web-
`page as it appeared at the time Google indexed the page, but
`does not store images from the webpage. Id. at 833. Google
`may provide a link to a cached webpage in response to a
`
`3Generally, a “cache” is “a computer memory with very short access
`time used for storage of frequently or recently used instructions or data.”
`United States v. Ziegler, 474 F.3d 1184, 1186 n.3 (9th Cir. 2007) (quoting
`MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 171 (11th ed. 2003)). There
`are two types of caches at issue in this case. A user’s personal computer
`has an internal cache that saves copies of webpages and images that the
`user has recently viewed so that the user can more rapidly revisit these
`webpages and images. Google’s computers also have a cache which serves
`a variety of purposes. Among other things, Google’s cache saves copies
`of a large number of webpages so that Google’s search engine can effi-
`ciently organize and index these webpages.
`
`

`
`PERFECT 10 v. AMAZON.COM
`
`5763
`
`user’s search query. However, Google’s cache version of the
`webpage is not automatically updated when the webpage is
`revised by its owner. So if the webpage owner updates its
`webpage to remove the HTML instructions for finding an
`infringing image, a browser communicating directly with the
`webpage would not be able to access that image. However,
`Google’s cache copy of the webpage would still have the old
`HTML instructions for the infringing image. Unless the
`owner of the computer changed the HTML address of the
`infringing image, or otherwise rendered the image unavail-
`able, a browser accessing Google’s cache copy of the website
`could still access the image where it is stored on the website
`publisher’s computer. In other words, Google’s cache copy
`could provide a user’s browser with valid directions to an
`infringing image even though the updated webpage no longer
`includes that infringing image.
`
`In addition to its search engine operations, Google gener-
`ates revenue through a business program called “AdSense.”
`Under this program, the owner of a website can register with
`Google to become an AdSense “partner.” The website owner
`then places HTML instructions on its webpages that signal
`Google’s server to place advertising on the webpages that is
`relevant to the webpages’ content. Google’s computer pro-
`gram selects the advertising automatically by means of an
`algorithm. AdSense participants agree to share the revenues
`that flow from such advertising with Google.
`
`Google also generated revenues through an agreement with
`Amazon.com that allowed Amazon.com to in-line link to
`Google’s search results. Amazon.com gave its users the
`impression that Amazon.com was providing search results,
`but Google communicated the search results directly to Ama-
`zon.com’s users. Amazon.com routed users’ search queries to
`Google and automatically transmitted Google’s responses
`(i.e., HTML instructions for linking to Google’s search
`results) back to its users.
`
`

`
`5764
`
`PERFECT 10 v. AMAZON.COM
`
`Perfect 10 markets and sells copyrighted images of nude
`models. Among other enterprises, it operates a subscription
`website on the Internet. Subscribers pay a monthly fee to view
`Perfect 10 images in a “members’ area” of the site. Subscrib-
`ers must use a password to log into the members’ area.
`Google does not include these password-protected images
`from the members’ area in Google’s index or database. Per-
`fect 10 has also licensed Fonestarz Media Limited to sell and
`distribute Perfect 10’s reduced-size copyrighted images for
`download and use on cell phones.
`
`Some website publishers republish Perfect 10’s images on
`the Internet without authorization. Once this occurs, Google’s
`search engine may automatically index the webpages contain-
`ing these images and provide thumbnail versions of images in
`response to user inquiries. When a user clicks on the thumb-
`nail image returned by Google’s search engine, the user’s
`browser accesses the third-party webpage and in-line links to
`the full-sized infringing image stored on the website publish-
`er’s computer. This image appears, in its original context, on
`the lower portion of the window on the user’s computer
`screen framed by information from Google’s webpage.
`
`Procedural History. In May 2001, Perfect 10 began notify-
`ing Google that its thumbnail images and in-line linking to the
`full-size images infringed Perfect 10’s copyright. Perfect 10
`continued to send these notices through 2005.
`
`On November 19, 2004, Perfect 10 filed an action against
`Google that included copyright infringement claims. This was
`followed by a similar action against Amazon.com on June 29,
`2005. On July 1, 2005 and August 24, 2005, Perfect 10 sought
`a preliminary injunction to prevent Amazon.com and Google,
`respectively, from “copying, reproducing, distributing, pub-
`licly displaying, adapting or otherwise infringing, or contrib-
`uting to the infringement” of Perfect 10’s photographs;
`linking to websites that provide full-size infringing versions
`
`

`
`PERFECT 10 v. AMAZON.COM
`
`5765
`
`of Perfect 10’s photographs; and infringing Perfect 10’s
`username/password combinations.”
`
`The district court consolidated the two actions and heard
`both preliminary injunction motions on November 7, 2005.
`The district court issued orders granting in part and denying
`in part the preliminary injunction against Google and denying
`the preliminary injunction against Amazon.com. Perfect 10
`and Google cross-appealed the partial grant and partial denial
`of the preliminary injunction motion, and Perfect 10 appealed
`the denial of the preliminary injunction against Amazon.com.
`On June 15, 2006, the district court temporarily stayed the
`preliminary injunction.
`
`II
`
`Standard of Review
`
`We review the district court’s grant or denial of a prelimi-
`nary injunction for an abuse of discretion. A&M Records, Inc.
`v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001). The dis-
`trict court must support a preliminary injunction with findings
`of fact, which we review for clear error. Earth Island Inst. v.
`U.S. Forest Serv., 442 F.3d 1147, 1156 (9th Cir. 2006). We
`review the district court’s conclusions of law de novo. Nap-
`ster, 239 F.3d at 1013.
`
`[1] Section 502(a) of the Copyright Act authorizes a court
`to grant injunctive relief “on such terms as it may deem rea-
`sonable to prevent or restrain infringement of a copyright.” 17
`U.S.C. § 502(a). “Preliminary injunctive relief is available to
`a party who demonstrates either: (1) a combination of proba-
`ble success on the merits and the possibility of irreparable
`harm; or (2) that serious questions are raised and the balance
`of hardships tips in its favor. These two formulations repre-
`sent two points on a sliding scale in which the required degree
`of irreparable harm increases as the probability of success
`
`

`
`5766
`
`PERFECT 10 v. AMAZON.COM
`
`decreases.” Napster, 239 F.3d at 1013 (internal quotation and
`citation omitted).
`
`[2] Because Perfect 10 has the burden of showing a likeli-
`hood of success on the merits, the district court held that Per-
`fect 10 also had the burden of demonstrating a likelihood of
`overcoming Google’s fair use defense under 17 U.S.C. § 107.
`Perfect 10, 416 F. Supp. 2d at 836-37. We have not previ-
`ously ruled on this issue, see Napster, 239 F.3d at 1014 n.3
`(cataloguing conflicting authority), and we now agree with
`the district court’s ruling. In order to demonstrate its likely
`success on the merits, the moving party must necessarily dem-
`onstrate it will overcome defenses raised by the non-moving
`party. This burden is correctly placed on the party seeking to
`demonstrate entitlement to the extraordinary remedy of a pre-
`liminary injunction at an early stage of the litigation, before
`the defendant has had the opportunity to undertake extensive
`discovery or develop its defenses. Our conclusion that a party
`seeking a preliminary injunction in the copyright context
`bears the burden of showing its likely success in overcoming
`a fair use defense is consistent with decisions of the Federal
`Circuit purporting to apply Ninth Circuit law. See Atari
`Games Corp. v. Nintendo of Am. Inc., 975 F.2d 832, 837 (Fed.
`Cir. 1992) (“[F]ollowing Ninth Circuit caselaw [for review of
`a district court’s grant of preliminary injunction], this court
`must determine whether Nintendo has shown a likelihood of
`success on its prima facie case of copyright infringement and
`a likelihood that it will overcome Atari’s copyright misuse
`defense.”); see also H.H. Robertson, Co. v. United Steel Deck,
`Inc., 820 F.2d 384, 387-89 (Fed. Cir. 1987) (requiring a patent
`holder seeking preliminary injunctive relief to overcome the
`defense that the patent is invalid even though the patent is
`presumed valid at trial), overruled on other grounds by Mark-
`man v. Westview Instruments, Inc., 52 F.3d 967, 977-79 (Fed.
`Cir. 1995).
`
`[3] However, entitlement for preliminary relief “is deter-
`mined in the context of the presumptions and burdens that
`
`

`
`PERFECT 10 v. AMAZON.COM
`
`5767
`
`would inhere at trial on the merits.” H.H. Robertson, 820 F.2d
`at 388. Because the defendant in an infringement action has
`the burden of proving fair use, see Campbell v. Acuff-Rose
`Music, Inc., 510 U.S. 569, 590 (1994), the defendant is
`responsible for introducing evidence of fair use in responding
`to a motion for preliminary relief. See Dr. Seuss Enters., L.P.
`v. Penguin Books USA, Inc., 109 F.3d 1394, 1403 (9th Cir.
`1997). The plaintiff must then show it is likely to succeed in
`its challenge to the alleged infringer’s evidence.
`
`Google also raises an affirmative defense under title II of
`the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C.
`§ 512. Congress enacted title II of the DMCA “to provide
`greater certainty to service providers concerning their legal
`exposure for infringements that may occur in the course of
`their activities.” Ellison v. Robertson, 357 F.3d 1072, 1076
`(9th Cir. 2004) (internal quotation omitted). Sections 512(a)
`through (d) limit liability for (respectively): “(1) transitory
`digital network communications; (2) system caching; (3)
`information residing on systems or networks at the direction
`of users; and (4) information location tools.” Id. at 1077. A
`service provider that qualifies for such protection is not liable
`for monetary relief and may be subject only to the narrow
`injunctive relief set forth in section 512(j). 17 U.S.C.
`§ 512(a). In order to obtain preliminary injunctive relief
`beyond what is allowed by title II of the DMCA, Perfect 10
`must also demonstrate a likelihood of overcoming Google’s
`defenses under title II of the DMCA.4
`
`4Perfect 10 argues that we are bound by the language and structure of
`title II of the DMCA in determining Google’s liability for copyright
`infringement. We have noted that the DMCA does not change copyright
`law; rather, “Congress provided that [the DMCA’s] limitations of liability
`apply if the provider is found to be liable under existing principles of law.”
`Ellison, 357 F.3d at 1077 (emphasis and internal quotation omitted). As
`a result, “[c]laims against service providers for direct, contributory, or
`vicarious copyright infringement, therefore, are generally evaluated just as
`they would be in the non-online world.” Id.; see also 17 U.S.C. § 512(l)
`(“The failure of a service provider’s conduct to qualify for limitation of
`
`

`
`5768
`
`PERFECT 10 v. AMAZON.COM
`
`III
`
`Direct Infringement
`
`Perfect 10 claims that Google’s search engine program
`directly infringes two exclusive rights granted to copyright
`holders: its display rights and its distribution rights.5 “Plain-
`tiffs must satisfy two requirements to present a prima facie
`case of direct infringement: (1) they must show ownership of
`the allegedly infringed material and (2) they must demonstrate
`that the alleged infringers violate at least one exclusive right
`granted to copyright holders under 17 U.S.C. § 106.” Napster,
`239 F.3d at 1013; see 17 U.S.C. § 501(a). Even if a plaintiff
`satisfies these two requirements and makes a prima facie case
`of direct infringement, the defendant may avoid liability if it
`
`liability under this section shall not bear adversely upon the consideration
`of a defense by the service provider that the service provider’s conduct is
`not infringing under this title or any other defense.”). Therefore, we must
`consider Google’s potential liability under the Copyright Act without ref-
`erence to title II of the DMCA.
`517 U.S.C. § 106 states, in pertinent part:
` Subject to sections 107 through 122, the owner of copyright
`under this title has the exclusive rights to do and to authorize any
`of the following:
`
`(1) to reproduce the copyrighted work in copies or phonore-
`cords;
`. . . .
`(3) to distribute copies or phonorecords of the copyrighted
`work to the public by sale or other transfer of ownership, or by
`rental, lease, or lending;
`. . . .
`(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
`. . . .
`
`
`
`
`
`
`
`

`
`PERFECT 10 v. AMAZON.COM
`
`5769
`
`can establish that its use of the images is a “fair use” as set
`forth in 17 U.S.C. § 107. See Kelly, 336 F.3d at 817.
`
`Perfect 10’s ownership of at least some of the images at
`issue is not disputed. See Perfect 10, 416 F. Supp. 2d at 836.
`
`The district court held that Perfect 10 was likely to prevail
`in its claim that Google violated Perfect 10’s display right
`with respect to the infringing thumbnails. Id. at 844. How-
`ever, the district court concluded that Perfect 10 was not
`likely to prevail on its claim that Google violated either Per-
`fect 10’s display or distribution right with respect to its full-
`size infringing images. Id. at 844-45. We review these rulings
`for an abuse of discretion. Napster, 239 F.3d at 1013.
`
`A. Display Right
`
`In considering whether Perfect 10 made a prima facie case
`of violation of its display right, the district court reasoned that
`a computer owner that stores an image as electronic informa-
`tion 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,” Perfect 10, 416 F. Supp. 2d at 839) is
`displaying the electronic information in violation of a copy-
`right holder’s exclusive display right. Id. at 843-45; see 17
`U.S.C. § 106(5). Conversely, the owner of a computer that
`does not store and serve the electronic information to a user
`is not displaying that information, even if such owner in-line
`links to or frames the electronic information. Perfect 10, 416
`F. Supp. 2d at 843-45. The district court referred to this test
`as the “server test.” Id. at 838-39.
`
`Applying the server test, the district court concluded that
`Perfect 10 was likely to succeed in its claim that Google’s
`thumbnails constituted direct infringement but was unlikely to
`succeed in its claim that Google’s in-line linking to full-size
`infringing images constituted a direct infringement. Id. at 843-
`45. As explained below, because this analysis comports with
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`PERFECT 10 v. AMAZON.COM
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`the language of the Copyright Act, we agree with the district
`court’s resolution of both these issues.
`
`[4] We have not previously addressed the question when a
`computer displays a copyrighted work for purposes of section
`106(5). Section 106(5) states that a copyright owner has the
`exclusive right “to display the copyrighted work publicly.”
`The Copyright Act explains that “display” means “to show a
`copy of it, either directly or by means of a film, slide, televi-
`sion image, or any other device or process . . . .” 17 U.S.C.
`§ 101. Section 101 defines “copies” as “material objects,
`other than phonorecords, in which a work is fixed by any
`method now known or later developed, and from which the
`work can be perceived, reproduced, or otherwise communi-
`cated, either directly or with the aid of a machine or device.”
`Id. Finally, the Copyright Act provides that “[a] work is
`‘fixed’ in a tangible medium of expression when its embodi-
`ment in a copy or phonorecord, by or under the authority of
`the author, is sufficiently permanent or stable to permit it to
`be perceived, reproduced, or otherwise communicated for a
`period of more than transitory duration.” Id.
`
`[5] We must now apply these definitions to the facts of this
`case. A photographic image is a work that is “ ‘fixed’ in a tan-
`gible medium of expression,” for purposes of the Copyright
`Act, when embodied (i.e., stored) in a computer’s server (or
`hard disk, or other storage device). The image stored in the
`computer is the “copy” of the work for purposes of copyright
`law. See MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d
`511, 517-18 (9th Cir. 1993) (a computer makes a “copy” of
`a software program when it transfers the program from a third
`party’s computer (or other storage device) into its own mem-
`ory, because the copy of the program recorded in the com-
`puter is “fixed” in a manner that is “sufficiently permanent or
`stable to permit it to be perceived, reproduced, or otherwise
`communicated for a period of more than transitory duration”
`(quoting 17 U.S.C. § 101)). The computer owner shows a
`copy “by means of a . . . device or process” when the owner
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`PERFECT 10 v. AMAZON.COM
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`5771
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`uses the computer to fill the computer screen with the photo-
`graphic image stored on that computer, or by communicating
`the stored image electronically to another person’s computer.
`17 U.S.C. § 101. In sum, based on the plain language of the
`statute, a person displays a photographic image by using a
`computer to fill a computer screen with a copy of the photo-
`graphic image fixed in the computer’s memory. There is no
`dispute that Google’s computers store thumbnail versions of
`Perfect 10’s copyrighted images and communicate copies of
`those thumbnails to Google’s users.6 Therefore, Perfect 10 has
`made a prima facie case that Google’s communication of its
`stored thumbnail images directly infringes Perfect 10’s dis-
`play right.
`
`[6] Google does not, however, display a copy of full-size
`infringing photographic images for purposes of the Copyright
`Act when Google frames in-line linked images that appear on
`a user’s computer screen. Because Google’s computers do not
`store the photographic images, Google does not have a copy
`of the images for purposes of the Copyright Act. In other
`words, Google does not have any “material objects . . . in
`which a work is fixed . . . and from which the work can be
`perceived, reproduced, or otherwise communicated” and thus
`cannot communicate a copy. 17 U.S.C. § 101.
`
`[7] Instead of communicating a copy of the image, Google
`provides HTML instructions that direct a user’s browser to a
`website publisher’s computer that stores the full-size photo-
`graphic image. Providing these HTML instructions is not
`equivalent to showing a copy. First, the HTML instructions
`are lines of text, not a photographic image. Second, HTML
`
`6Because Google initiates and controls the storage and communication
`of these thumbnail images, we do not address whether an entity that
`merely passively owns and manages an Internet bulletin board or similar
`system violates a copyright owner’s display and distribution rights when
`the users of the bulletin board or similar system post infringing works. Cf.
`CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544 (4th Cir. 2004).
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`PERFECT 10 v. AMAZON.COM
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`instructions do not themselves cause infringing images to
`appear on the user’s computer screen. The HTML merely
`gives the address of the image to the user’s browser. The
`browser then interacts with the computer that stores the
`infringing image. It is this interaction that causes an infringing
`image to appear on the user’s computer screen. Google may
`facilitate the user’s access to infringing images. However,
`such assistance raises only contributory liability issues, see
`Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545
`U.S. 913, 929-30 (2005), Napster, 239 F.3d at 1019, and does
`not constitute direct infringement of the copyright owner’s
`display rights.
`
`Perfect 10 argues that Google displays a copy of the full-
`size images by framing the full-size images, which gives the
`impression that Google is showing the image within a single
`Google webpage. While in-line linking and framing may
`cause some computer users to believe they are viewing a sin-
`gle Google webpage, the Copyright Act, unlike the Trade-
`mark Act, does not protect a copyright holder against acts that
`cause consumer confusion. Cf. 15 U.S.C. § 1114(1) (provid-
`ing that a person who uses a trademark in a manner likely to
`cause confusion shall be liable in a civil action to the trade-
`mark registrant).7
`
`Nor does our ruling that a computer owner does not display
`
`7Perfect 10 also argues that Google violates Perfect 10’s right to display
`full-size images because Google’s in-line linking meets the Copyright
`Act’s definition of “to perform or display a work ‘publicly.’ ” 17 U.S.C.
`§ 101. This phrase means “to transmit or otherwise communicate a perfor-
`mance or display of the work to . . . the public, by means of any device
`or process, whether the members of the public capable of receiving the
`performance or display receive it in the same place or in separate places
`and at the same time or at different times.” Id. Perfect 10 is mistaken.
`Google’s activities do not meet this definition because Google transmits
`or communicates only an address which directs a user’s browser to the
`location where a copy of the full-size image is displayed. Google does