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The proposition that a party who links online to third-party materials cannot be a direct copyright infringer was bolstered by the 9th Circuit validating what is known as the “server test” four years ago in Perfect 10, Inc. v. Amazon.com, Inc. The server test focuses on the location of infringing material, but is the actual conduct of the alleged infringing party more important than the physical location of infringing material? This is the question that the 7th Circuit will answer in its review of the Northern District of Illinois’ decision in Flava Works, Inc. v. Gunter.

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