American Server and French Incorporation

                                                                       American server

                                                                     French corporation


With the Seventh Circuit's ruling in Flava Works, we now have a clear divergence between US and French copyright law in relation to the "server" approach and the "incorporation" approach for assessing infringement of the public performance/display right.

The "server/incorporation" terminology has its roots in the Perfect 10 ruling where the Ninth Circuit had to decide whether there was infringement of the display right where the defendant (Google) did not actually serve the copyrighted image but merely framed it in such a way that the end user may have gotten the impression that Google was displaying it (despite the fact that the actual bits were being served by a third-party site).  The appellate court adopted the server test and held that Google was not liable for direct infringement.  The Seventh Circuit's recent ruling in Flava Works, which dealt with the public performance right and embedded links, adopted a similar approach (see Flava Works Post).

In contrast, in France, the relevant case-law is to the effect that what matters in such circumstances is the impression produced on the end user (i.e., the incorporation test).  See, for example French case-law as well as TGI Paris 25 June 2009.  In other words, a party will be liable for infringing the public performance/display right where its site is set up such that the presentation of the copyrighted work is incorporated therein (e.g. by way of framing or in-line linking).

While the reasons for such divergent approaches may be many, the simplest explanation may just be that US copyright law has well developed theories of indirect or secondary copyright infringement (vicarious, contributory and inducement) and the aforementioned rulings dealt with issues of direct or primary infringement, leaving open the issue of whether the parties were guilty of indirect or secondary infringement.  French copyright law, on the other hand, is considerably poorer when it comes to theories of indirect infringement.  Accordingly, if the server test were adopted, a defendant who engages in such conduct would likely escape liablity altogether, a rather inequitable conclusion.

Perfect 10 Ruling