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 Google v. Perfect 10: Appeals Court decision

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.

Also see:

Perfect 10, Inc. v., Inc., CV-05-04753-AHM (9th Cir. May 16, 2007)




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