Thumbs Down To Google’s Thumbnail Images

Google image search engine’s use of thumbnails probably infringes on the owner of the image’s copyright, a U.S. District Court judge found.

The court granted a preliminary injunction prohibiting Google from displaying the thumbnail images from Perfect10.com’s website when showing results of an image search. The service in question is Google’s image search that displays thumbnail results of images found by Google’s web crawlers.

The thumbnails are low resolution images and are stored on Google’s own servers. When a user clicks on the thumbnail, a full size  image is displayed. The full size images are not stored on Google’s servers but are the result of a link to the original site.

In determining whether there was copyright infringement, the court discussed two approaches in determining whether the images were “displayed.” One was a server test, that is, where the images are stored and an incorporation test, that is, where the images are displayed on the screen regardless of where they are stored. The court adopted the server test and found that Google’s thumbnails were stored on its computers and therefore “displayed” the images. As to the full size images, the court found that they did not meet the “server test” and Google thus did not “display” the images. Google argued that even if it “displayed” the images, the indexing of the images was a fair use under the copyright laws.

The court rejected Google’s argument finding that Google’s use was commercial in nature. “Google unquestionably derives significant commercial benefit from Google Image Search in the form of increased user traffic-and, in turn, increased advertising revenue. The more people who view its pages and rely on its search capabilities, the more influence Google wields in the search engine market and (more broadly) in the web portal market. In turn, Google can attract more advertisers to its AdSense and AdWords programs,” the court wrote.

In addition, the court found that Perfect 10 has recently been selling a reduced size of the images for cell phone use. “Google’s use of thumbnails likely does harm the potential market for the downloading of P10’s reduced-size images onto cell phones.” The court rejected Perfect 10’s claim for contributory and vicarious infringement.

Perfect 10 v. Google, Inc., Case No. CV 04-9484, Order Entered February 17, 2006.