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The Thumbnail Dilemma continues in Europe


In the article Green light for search engines to use thumbnail images? I have provided an overview over the legal situation concerning image search engines. I came to the conclusion that it is well established in the USA that the creation of thumbnails, small low resolution versions of the original, is fair use in the meaning of Section 107 of the U.S. Copyright Act. In Germany however, differing court opinions could not yet provide operators of picture search engines with the necessary legal certainty.


With this posting I want to summarize the further developments since the writing of the article in 2007.


1. USA

There have been no reports about new cases dealing with the thumbnail issue. But it's worth mentioning, that starting from the beginning of 2008, Google has been experimenting with the incorporation of graphical ads with image search results (See e.g. Google adding display ads to image search,

In determining what constitutes fair use a court has to consider inter alia the purpose of the use including whether it is commercial or not. So far this factor usually has not been interpreted against search engines, because they don't use the images in an aestethic manner. Instead they help index and improve access to images on the web thus providing a new and transformative use. The commercial nature of search engines so far did not warrant another result, but the legal position of Google might be weaker in possible future lawsuits with the ads beside the picture search results. But it's still unlikely that this will be enough to swift the balance of the fair use test in favor of the copyright owners.


2. Germany

In 2007 the District Court of Erfurt (decision of March 15, 2007, Case No. 3 O 1108/05, full text (German) at stressed the fact that the thumbnails cannot be enhanced into high quality images and that their depiction is beneficial to the copyright holder, because visual search engines help users locate his works on the internet. Thus the court assumed that there was an implied consent to the actions taken by search engines.


The plaintiff appealed the decision and the Thuringian Higher Regional Court (decision of February 27, 2008, Case No. 2 U 319/07, full text (German) at did not follow the reasoning of the district court. Google failed to convince the appeal 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 according to this opinion thumbnails used by picture search engines usually violate the German Copyright Act.


But then the court came up with a solution to dismiss this specific 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!


In my opinion this approach has some serious flaws: The plaintiff had used metatags. The decision only speaks of the keyword metatag, which is completely ignored by Google (see e.g. Even under the assumption that the plaintiff had also used other metatags for search engine optimization, there is still the problem that metatags are used to increase the visibility of a web site within the (web) search results, not the (picture) search results. So the court could 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 for search engines (which is nearly impossible to prove), than the reasoning of the court would have been correct, but only then.


To sum up, it would have been better to consider the search engine optimization under the aspect of "implied consent". The use of metatags shows that the copyright owner wanted her works to be found. So it would be consequent to assume, she impliedly consented to the necessary copyright uses by search engines.


The case has been appealed to the German Federal Court of Justice (BGH). Even if Google wins there again, which is not unlikely given some statements of the BGH on implied consent in another context (decision of December 20, 2007, Case No. I ZR 94/05), picture search engines have one more problem to face. When an image has been uploaded on a web site without the copyright holder's permission, than there is no longer a basis for an implied consent. This problem has already become immanent. A photographer and an artist sued Google for copyright infringement and won. According to the Regional Court of Hamburg (decision of September 26, 2008, Case No. 308 O 42/06, full text (German) at,  Google infringes the making available right of the copyright owner, stipulated in section 19 a German Copyright Act. The court examined several exceptions to the copyright exclusivity, e.g. the right of citation, but found that no exception applies. The court then stressed the importance of search engines for the internet (although it mentioned that picture search is not as important as web site 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. The decision has also been appealed.


So to conclude, statutory limitations on copyright do not apply in the thumbnail context. Picture Search engines rely on the weak "implied consent" defense. The only Upper Court decision so far has rejected this argument and the regional court of Hamburg decision pointed to the even greater problem that occurs when the copyright owner did not grant any consent to the use of his picture on the web.


The German legislator alone can not solve the problem, because Art. 5 of the InfoSoc Directive prevents the instruction of further limitations aimed at allowing free digital usage (Directive 2001/29/EC of the European Parliament and the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, EC OJ (2001) L-167 p. 10). It is up to the EU legislator to find a reasonable solution to the thumbnail dilemma for all EU member states.





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