Links & Law - Information about legal aspects of search engines, linking and framing

Hyperlink & Search Engine Law News  Decisions & Court Documents Worldwide Legal Resources (Hyperlink & Search Engine Law Articles) Linking Law Cases Search Engine Law Publications by Dr. Stephan Ott Technical    Background

 Important thumbnail decision in Germany

So far, German courts were split on the question, if copyright law allows the creation and display of thumbnail images by picture search engines.

There have been two major decisions, one by the District Court of Hamburg (Case No. 308 O 449/03, full text available at: and the second by the District Court of Erfurt (Case No.: 3 O 1108/05, full text available at:

 The District Court of Hamburg ruled against Google's German news service when it found that thumbnail images, that were displayed beside excerpts from various news stories, were protected under German copyright law and could not be reproduced without permission.

 The District Court of Erfurt argued that webmasters must brace themselves for other users to link to their works. The court stressed the fact that the thumbnails cannot be enhanced into high quality images and that the depiction of thumbnails is beneficial to the copyright holder, because visual search engines help users to locate them on the internet. Page owners had one easy way to prevent their pictures from appearing as thumbnails in search engine results, the court wrote. They can restrict access to the works on their site, e.g. by the use of a robots.txt file.

The plaintiff appealed the decision and the Thuringian Higher Regional Court (decision of February 27, 2008, Case No. 2 U 319/07 - full text in German) did not follow the reasoning of the District Court.

In accordance with prior cases the court found that the creation and display of thumbnail images is not allowed under the exemptions granted by the German Copyright Act. Google also failed to convince the court that the "implied consent" defense applies. In the eyes of the judges, the upload of a work on a web site is not enough to find that the copyright owner agrees to all search engine uses. So thumbnails used by picture search engines violate the German Copyright Act (I don't agree with this result, please see my article Green light for search engines to use thumbnail images?).

But then the court came up with a solution to dismiss the lawsuit. The plaintiff was engaged in search engine optimization. Under these circumstances, the court found that the plaintiff had attracted crawlers and was estopped from raising claims against search engines!

I don't think that it is a good idea to assume that the plaintiff abused her legal rights:

  • The plaintiff had used metatags (the decision only speaks of the keyword metatag - that is useless, if you want to optimize your pages for Google, but the plaintiff might have also used other metatags). Metatags don't "attract" crawlers. They are a way of telling search engines which keywords are relevant for a web site, but they don't influence how often a web page is visited. Metatags are used to increase the visibility of a web site within the (web) search results.

  • The court did not offer a solution what the plaintiff should have done, if she wanted her web site to appear in the web search results, but not in the picture search results. If she had optimized the pictures (which is very difficult to prove), than the reasoning of the court would have been correct, but only then.

  • In my view, it would have been better to consider the search engine optimization (SEO) under the aspect of "implied consent". The use of the metatags shows that the copyright owner wanted his works to be found. So it would be consequent to assume, he impliedly consents to the necessary copyright uses by search engines.

For a more in depth analysis, see the comment in my German Links & Law Blog 




The Links & Law website is updated regularily, so  check back for updated information and resources about search engine and linking issues.

You are currently in the archive with older news. A complete list of the updates can be found here!


Masthead/Curriculum Vitae
Copyright © 2002-2008 Dr. Stephan Ott 

All Rights Reserved.