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.
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
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.
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?).
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:
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.
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