Elliot McGucken v. Valnet, Inc., a Canadian Corporation, dba TheTravel.com

Section 106(5) of the Copyright Act states that the copyright owner of a pictorial work has the exclusive right to control how the work is publicly displayed. 17 U.S.C. § 106(5). “Anyone who violates any of the exclusive rights of the copyright owner in Section 106 … is an infringer of the copyright”. 17 U.S.C. § 501(a) (cleaned up). Contrary to those provisions, the Ninth Circuit has granted website operators blanket immunity from infringement of the display right in Section 106(5). Specifically, in the Ninth Circuit, a website operator who publicly displays the copyrighted pictorial work of an author, without authorization, is not liable for copyright infringement if the website operator displays the work using the technological process of “link embedding” rather than the technological process of “image hosting”. Every court outside the Ninth Circuit to consider the issue has rejected the Ninth Circuit’s approach. The Question Presented is: Whether the exclusive right to publicly display a copyrighted work, 17 U.S.C. § 106(5), is infringed when a website operator publicly shows a copyrighted work without authorization, regardless of the technological process used to show the work.