Creation of Thumbnails can be a copyright infringement in the USA

According to a preliminary ruling in a US Federal Court thumbnail images displayed in Google Image Search breached Perfect 10 copyright. The court did not follow Google's argument that its creation and display of thumbnails is fair use under 17 U.S.C. § 107. Decisive arguments:

• ... If third-party websites that contain infringing copies of P10 photographs are also AdSense partners, Google will serve advertisements on those sites and split the revenue generated from users who click on the Google-served advertisements...Google has a strong incentive to link to as many third-party websites as possible—including those that host AdSense advertisements. (does not seem very convincing to me...)

• ...In early 2005 P10 entered into a licensing agreement with Fonestarz Media Limited for the sale and distribution of P10 reduced-size images for download to and use on cell phones. Google’s use of thumbnails does supersede this use of P10’s images, because mobile users can download and save the thumbnails displayed by Google Image Search onto their phones (very convincing, but the argument is limited to this case, so Google's picture search as such is not in jepardy)

US District Court Judge Howard Matz also held that Google was not responsible if surfers clicked on thumbnails that directed them to full size porno images hosted on third party websites, taken without permission from the official Perfect 10 site. This is big news: The court held that Google is not secondarily liable under the doctrines of contributory or vicarious infringement for linking to infringing content! Bringing visitors to the linked-to-websites is not enough to establish material contribution. So in theory, Google could stop removing websites with infringinging content from their search results. Google no longer depends on the safe harbour provision (17 U.S.C. § 512 (d)).

Howard Matz ordered Google and Perfect 10 to develop a preliminary injunction that reflects both factors. The order could effectively bar Google from featuring thumbnail pictures. So no surprise: Google said that it plans to appeal the injunction!

PDF-document of the decision 

• February 23, 2006: Ottaviani, John, More on Perfect 10 v. Google, Technology & Marketing Law Blog

• February 22, 2006: Leyden, John, Google Perfect 10 thumbnails 'breach copyright', The Register:
  "Google has been held liable for infringing the copyright of images purloined by others from adult website Perfect 10."

• February 22, 2006: US-Richter erwägt Verfügung gegen Googles Thumbnail-Funktion, Heise:
  "Google verstößt mit seiner Funktion, miniaturisierte Kopien vom Angebot des Online-Aktfoto-Anbieters Perfect 10 anzuzeigen, möglicherweise gegen Copyright-Gesetze."

• February 22, 2006: No Googling Perfect 10's Nudes, Wired:
  "Google's image search service violates the copyrights of Perfect 10, an adult magazine and web publisher, by displaying thumbnail-sized photographs, a federal judge has ruled."