Google’s Search Results May Contribute to Copyright Infringement

Perfect 10 didn’t score a 10 in appealing its case against Google, but the search engine giant may be contibuting to copyright infringement, the court said.

Perfect 10, Inc. markets and sells copyrighted images of nude models on its website. Its members pay a monthly fee to view the images. Google, Inc., through its search engine, indexes images, providing both a “thumbnail” image and an online link to the full-size images. The “thumbnail” is stored on Google’s computers, but the full-size images are available on third-party websites. These third-party sites, however, lack permission from Perfect 10 to display the images that Google has indexed.

The Ninth Circuit found that the “thumbnail” images were a transformative use and thus did not infringe Perfect 10’s copyright. The court said Google’s index “provides social benefit by incorporating an original work into a new work, namely an electronic reference tool.”

The trial court had found that the use of the thumbnails by Google might be infringing since Perfect 10 markets thumbnails for cell phones, although there was no evidence that any such sales had occurred. The appellate court agreed with the trial court that, because the full-size images were not “copied” onto Google’s computers, there was no copyright infringement. Instead, Google merely used website addresses that pointed to where the images were located.

However, the appellate court said the trial court erred when it found that Google was not liable for contributory infringement since Google knew that some of the images infringed Perfect 10’s copyrights. In fact, Perfect 10 sent thousands of “take down” notices to Google. “There is no dispute that Google substantially assists websites to distribute their infringing copies to a worldwide market and assists a worldwide audience of users to access infringing materials,” the court wrote. “Google could be held contributorily liable if it had knowledge that infringing Perfect 10 images were available using its search engine, could take simple measures to prevent further damage to Perfect 10’s copyrighted works, and failed to do so.”

Google argued that it was immune from contributory infringement because of the “safe harbor” provisions under the Digital Millennium Copyright Act that limits the liability of an internet service provider. The appellate court remanded the case to the trial court to consider the issue of contributory infringement and whether Perfect 10’s take down notices were sufficient to put Google on notice. The court also remanded the case to the trial court to determine if Amazon.com, which merely uses Google’s search function under the Amazon.com brand, knew that specific infringing material was being produced as a result of the Google search.

Perfect 10 v. Amazon.com, Inc. and Perfect 10 v. Google, Inc., Ninth Circuit Nos. 06-55405, 06-55406, 06-55425, 06-55759, 06-55854 and 06-55877, issued May 16, 2007.