Perfect 10 v. Google, Inc., 06-55405 (9^th Cir., May 16, 2007)

In a closely watched copyright case, the Ninth Circuit has overturned a preliminary injunction that prevented Google from creating and displaying thumbnail images of infringing photographs in its image search. Plaintiff Perfect 10 markets and sells images of nude models. Although it owns the copyrights to these pictures, infringing copies show up all over the Wild West World Wide Web. And it’s very easy to find these images, thanks to Google’s search engine and newcomers like Amazon’s A9.com. So Perfect 10 sued these deep pocket defendants, claiming that they were violating copyright laws both by displaying thumbnails of infringing pictures as part of a user’s search results and by linking to infringing websites.

Regarding the thumbnail images that show up in Google’s search results, the Court agrees with the district court that Google likely violated Perfect 10’s copyright by storing and displaying these thumbnail images. However, it rejects the preliminary injunction, concluding that Google is likely to prevail on its fair use defense given the “significantly transformative nature of Google’s search engine, particularly in light of its public benefit.” Regarding Google’s links to infringing websites, the Court affirms the district court’s conclusion that Google is not vicariously liable for linking to other websites that display infringing images.

But it’s not all good news for Google, as the Court remands for a determination of whether Google may be liable for contributory infringement for linking to infringing websites. The Court explains that if Google was aware that its links led to infringing activity and could have taken steps to prevent it, then it may be liable for helping its users find infringing material. On the other hand, even if there is a case for contributory infringement, Google may be able to take refuge in the safe harbor provisions of § 512 of the Digital Millennium Copyright Act.

Perfect 10’s claims against Amazon.com meet a similar fate, with the Court concluding that there is no case for direct or vicarious infringement, but remanding for fact-finding on the case for contributory infringement.

Kudos to relative newcomer Judge Sandra Ikuta, who has penned a clear and persuasive decision in a complex area of law.

Posted Wed, 16 May 2007 10:04:14 and filed under Intellectual Property, Decision of the Day. You can leave a response, or trackback from your own site.