Judge A Howard Matz of the Central District of California ruled
that “Google’s creation and public display of 'thumbnails' likely
do directly infringe P10’s copyrights” and that he will grant a
preliminary injunction on this aspect of the case on 8th March.
Judge Matz also found that Perfect 10 was unlikely to succeed on
broader claims that Google was liable for providing links to
websites that were using Perfect 10’s copyrighted images without
authorisation. He therefore refused to grant a preliminary
injunction on this front.
The case, which is likely to be appealed, has not yet been
scheduled for trial.
Background
Perfect 10 sued Google in November of 2004, arguing that, under
the guise of being a search engine, Google is displaying, free of
charge, thousands of copies of the best images from Perfect 10,
Playboy, nude scenes from major movies, nude images of supermodels,
as well as extremely explicit images of all kinds.
The action, which seeks an unspecified amount of damages,
followed a copyright ruling in 2002 relating to a search engine
that provided miniature images in search results, known as
thumbnails, and linked to the original image framed within the
search engine's own site.
On that occasion the court ruled that thumbnails themselves did
not infringe copyright because they amounted to "fair use" of the
originals.
While Google uses only thumbnails in its search results, the
search shows links to sites that use full size versions of the
images – in breach of copyright law, says Perfect 10.
Many of these sites make use of Google’s AdSense service, which
displays Google adverts, paid for by members of the search engine’s
AdWords service. This means that Google is also profiting from
third parties’ unauthorised use of Perfect 10’s porn, according to
Perfect 10.
The publisher also argues that Google’s thumbnails are of
sufficient quality to be used for download onto mobile phones – in
competition with a mobile download service licensed from Perfect 10
by the UK’s Fonestarz Media Limited.
The ruling
In a ruling published yesterday, Judge Howard Matz found that
Perfect 10 is likely to succeed on the issue of the display of
thumbnails, but not on the question of linking to a larger image
displayed on infringing sites.
The thumbnails, said the Judge, are a direct infringement of
copyright, but may be permitted through the ‘fair use’ defence.
But, unlike the 2002 ruling, “Google’s thumbnails lead users to
sites that directly benefit Google’s bottom line”. In effect, he
said, linking to sites that use Google’s AdSense service makes the
thumbnails much more commercial.
Google had argued that it had a policy in place to prevent such
web pages being displayed, but had not provided the Court with
evidence of how this policy was enforced.
The Judge was also concerned that the Google thumbnails could
compete with Fonestarz’ download service.
“Google’s thumbnail images are essentially the same size and of
the same quality as the reduced-size images that P10 licenses to
Fonestarz,” he explained. “Hence, to the extent that users may
choose to download free images to their phone rather than purchase
P10’s reduced-size images, Google’s use supersedes P10’s.”
Accordingly the fair use factor favoured Perfect 10 and not
Google, said Judge Matz.
He added: “The Court reaches this conclusion despite the
enormous public benefit that search engines such as Google provide.
Although the Court is reluctant to issue a ruling that might impede
the advance of internet technology, and although it is appropriate
for courts to consider the immense value to the public of such
technologies, existing judicial precedents do not allow such
considerations to trump a reasoned analysis of the four fair use
factors.”
The Court then considered the question of Google’s liability for
secondary copyright infringement – that it knew of, allowed,
contributed to and profited from the copyright infringement of
Perfect 10’s photos by other websites.
Perfect 10 argued that Google was in a position akin to the
original Napster service. When it served as a music-swapping site
it was found guilty in 2001 of contributory and vicarious copyright
infringement. Napster has since been re-launched as a legal music
download site.
The Court disliked the comparison. Google did not “materially
contribute” to the infringements by third-party websites.
“Google resembles Napster only in facilitating searches (i.e.,
helping users find information) – and even then there are
significant differences. Whereas Napster dedicated itself to
helping users locate audio files found on the otherwise
inaccessible hard drives of individual users, Google helps users
locate all types of information … found on the entire, publicly
accessible web,” said the Judge.
“P10 overstates Google’s actual conduct and confuses search
technology with active encouragement and promotion of infringing
activity,” he added.
And while Google does benefit from the infringing websites
through its AdSense programme, it has little control over those
sites. All Google can do is to remove a link to the infringing
sites – which do not disappear from the internet and are still
accessible.
"While we're disappointed with portions of the ruling, we are
pleased with Judge Matz's favourable ruling on linking and other
aspects of Google Image Search,” Google spokesman Michael Kwun told
the Associated Press. “We anticipate that any preliminary
injunction will have no effect on the vast majority of image
searches, and will affect only searches related to Perfect 10."
Google is likely to appeal the ruling.
