According to the
Court Google infringes the making available right of the copyright owner. The
court examines several exceptions to the copyright exclusivity, e.g. the right
of citation, but finds that no exception applies.
decisions on thumbnails in Germany discussed the possibility of an implied
consent by the copyright holder. But this case was different: The picture, which
Google used to create the thumbnail, had not been put on the web by the
copyright owner and he had also not allowed the reproduction by a third party.
So there was no basis for an implied consent.
The court then
stressed the importance of search engines for the internet (although it said
that picture search is not as important as web search), but it also said that it
was not up to the court to invent new copyright exceptions. It saw no
possibility to say that Google's actions are legal.
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