Here are some other observations on the case.

• The 9th Circuit upholds the “server test.” The 9th Circuit upholds the district court’s interpretation of what constitutes a “display” of electronic information on a web site. In order to “display” an image, a computer owner must store the image as electronic information and “serve” that information directly to the user; a computer owner who does not store and directly serve electronic information to a viewer and instead incorporates information stored on another’s computer via in-line links or frames is not “displaying” the information. Whether the information is served directly or is incorporated via in-line links, the information will show up the same way on the screen. Thus, Google’s storage and serving of the thumbnails, absent the fair use defense, may violate a copyright owner’s display right, but showing the full size images in a frame where the full size images resided on another server is not a “display” within the meaning of the Copyright Act.

  Here is another context where the server test could come into play: a blogger may embed YouTube-stored content on his or her website, but YouTube is the entity serving it and thus displaying it, not the blogger.

• Linking is not distribution. Linking to infringing content is not “distribution” of the content, because the electronic information is coming from another server.
• Intent may be imputed. Although the 9th Circuit notes that contributory copyright infringement must be intentional for liability to arise, it thereafter, quoting a principle of tort liability, asserts that intent may be imputed if the defendant knows that infringement is “substantially certain” to result from his or her activities. Basically, if an actor knows that the consequences of his or her actions are “substantially certain” to happen, and the actor goes ahead and acts anyway, the law will treat this situation as if the actor had desired to bring about the result.