In a reminder of Europe and America's continuing differences on copyright, a Hamburg court ruled Monday that Google's Image Search infringes copyright when it displays some image thumbnails in its search results. The Regional Court of Hamburg has held that these small, low-resolution copies of images, created and displayed by Google and other search engines in the course of a web search, are not protected by the exceptions and limitations in existing German copyright law.
The issue of Google's Image Search thumbnails has been raised before. In 2007, adult photo site Perfect 10 sued Google (as well as Amazon.com and Microsoft) over thumbnails created and displayed in searches, some linking to sites that had illegally copied and reposted photographs from Perfect 10. The US Ninth Circuit Court of Appeals determined that these images constituted a transformative use of the work, did not hurt the market for the original photographs, and thus were fair uses protected by US law.
German courts, however, say otherwise. Two recent lawsuits–one involving photographer Michael Bernhard, the other artist Thomas Horn, both of whose works have appeared in Google Image Search results–were both decided against Google. According to the Bernhard court ruling,
It doesn't matter that thumbnails are much smaller than original pictures and are displayed in a lower resolution…By using photos in thumbnails, no new work is created.
While it's fairly simple for web developers to stop sites or pages from being indexed by search engines, this ruling may actually place the onus on Google to identify and remove thumbnails of copyrighted images. It's also unclear how the artists benefit. Besides the broad logistical problems this could cause, it's unlikely that a small preview image would ever be used as a meaningful substitute for an original photograph or drawing. Instead, this decision only limits the usefulness of search engines and the ability of Internet users to find content online.
So what was the difference between the Perfect 10 and Bernhard/Horn cases? The simple answer is fair use. Unlike US law, where the concept of fair use provides a broad set of guidelines for determining whether a work may be used without the owner's permission, EU directives–by which German laws must abide–give only a specific list of exceptions for the use of copyrighted material. While it's unclear on what grounds Google defended its creation and use of thumbnails, a look at the EU Directive on Copyright reveals no exception similar to the “transformative use” justification used in the American case.
Although Google plans to appeal the decision, this case raises questions about the future of copyright in Europe. As detailed in Ars Technica, Google has had previous problems with copyright infringement cases in Europe, and it's possible that Google will settle rather than continue the suit, as it has in other cases. Were this to happen, Google may have to work on alternate methods to find and display search results or, as one article has suggested, block Image Search altogether in Germany. While infringement is a serious problem for many artists, the result here seems to be another case of outdated copyright laws stifling, not protecting, innovation.