Last year, a U.S. District Court in California
preliminarily enjoined Google from creating and publicly displaying thumbnail
versions of Perfect 10’s images, Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828
(C.D. Cal. 2006), but did not enjoin Google from linking to third-party websites
that display infringing full-size versions of Perfect 10’s images (see
Update 38). Perfect 10 and Google both appealed the district
court’s order. The U.S. Court of Appeals for the Ninth Circuit overturned that
decision and sent the case back down to the District Court for further
proceedings.
Key Findings:
The owner of a computer that does not store and
serve the electronic information to a user is not displaying that
information, even if such owner in-line links to or frames the electronic
information. So inline-linking to full-size images constitutes no direct
infringement.
Perfect 10 has succeeded in showing it would
prevail in its prima facie case that Google’s thumbnail images infringe
Perfect 10’s display rights, but failed to show a likelihood that it will
prevail against Google’s fair use defense. The court concluded that the
transformative nature of Google’s use is more significant than any
incidental superseding use or the minor commercial aspects of Google’s
search engine and website: "The district court reasoned that persons who
can obtain Perfect 10 images free of charge from Google are less likely to
pay for a download, and the availability of Google’s thumbnail images would
harm Perfect 10’s market for cell phone downloads. Id. As we discussed above,
the district court did not make a finding that Google users have downloaded
thumbnail images for cell phone use. This potential harm to Perfect 10’s
market remains hypothetical." So the Ninth Circuit disagreed that the
display of a thumbnail constitutes copyright infringement.
A search engine operator can be held
contributorily liable if it has actual knowledge that specific infringing
material is available using its system, and can take simple measures
to prevent further damage to copyrighted works, yet continues to provide
access to infringing works.
