Federal Appeals Court: Image Search Thumbnails Aren’t Copyright Infringement
Federal Appeals Court: Image Search Thumbnails Aren’t Copyright Infringement
Federal Appeals Court: Image Search Thumbnails Aren’t Copyright Infringement

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    The Ninth Circuit Court of Appeals today ruled that Google's Image Search doesn't directly infringe copyrights when copyrighted thumbnails show up in its search results. The court held that the smaller, indexed images were a fair use of the content, meaning that Google wasn't directly liable for copyright infringement.

    There's actually a lot of different legal theories built in to this one lawsuit, but the big news at this stage is that the thumbnails were “highly transformative” uses of the original works that didn't hurt the market for the original images. In fact, the court noted that

    “a search engine may be more transformative than a parody because a search engine provides an entirely new use for the original work, while a parody typically has the same entertainment purpose as the original work.”

    Perfect 10 also tried to argue that the reduced-size thumbnails could compete with smaller photos that it sells for cell phone downloads. The court called this theory “hypothetical,” since there wasn't a finding on whether Google users were substituting thumbnails for phone downloads.

    The key language from the decision:

    In this case, Google has put Perfect 10's thumbnail images (along with millions of other thumbnail images) to a use fundamentally different than the use intended by Perfect 10. In doing so, Google has provided a significant benefit to the public. Weighing this significant transformative use against the unproven use of Google's thumbnails for cell phone downloads, and considering the other fair use factors, all in light of the purpose of copyright, we conclude that Google's use of Perfect 10's thumbnails is a fair use.

    Other parts of the opinion held that:

    • Directing users to the full-size images on the infringing websites isn't a direct infringement, since the other website was displaying the image, not Google.

    • Google isn't “vicariously liable” for infringement: in other words, Google didn't have to do more to police what people were doing on indexed sites.

    A couple of other major points were left for the lower court to decide, once it gathers more evidence:

    • Google might be liable for contributory infringement: if it knew that infringing works were available via the image search, and there was a simple way to prevent this from happening, it needed to do so.

    • Even if Google could have easily prevented the infringement, it might qualify for the DMCA safe harbor provisions, if it meets the DMCA's standards.

    The decision in the lower district court didn't cover these areas, since it had decided the case on other grounds. The next step is for the lower court to gather and analyze the facts relevant to these questions, such as whether Google has an easy way of telling whether indexed images infringe copyright. Things look pretty good from here, though, since the Ninth Circuit found it impractical for Google to police sites under the vicarious liability theory. As for the DMCA defense, it seems like a winner for Google, given the terms of the statute.