Perfect 10 v Google

The U.S. Ninth Circuit has decided an appeal on the Perfect 10 v Google case, and has sent it back to the district court. For those unfamiliar with the case, Perfect 10 is an adult content provider who sued Google over Google Image thumbnails, claiming that the tiny images displayed after a search constitute direct and secondary infringement.

(Pictured, a gratuitous llama inline image to illustrate the point)

At the heart of the direct infringement case is Google’s practice of displaying reduced-sized inline picture. An inline is an HTML element that displays content hosted elsewhere. Perfect 10’s argument was that such depictions are directly infringing copyright, and the district court agreed in first instance. Now the Ninth Circuit has found that these images were not direct infringement, because they were not “copied” in the important sense, a decision that will be welcome by bloggers and website designers everywhere. The relevant part of the decision says:

“Instead of communicating a copy of the image, Google provides HTML instructions that direct a user’s browser to a website publisher’s computer that stores the full-size photographic image. Providing these HTML instructions is not equivalent to showing a copy. First, the HTML instructions are lines of text, not a photographic image. Second, HTML instructions do not themselves cause infringing images to appear on the user’s computer screen. The HTML merely gives the address of the image to the user’s browser. The browser then interacts with the computer that stores the infringing image. It is this interaction that causes an infringing image to appear on the user’s computer screen. Google may facilitate the user’s access to infringing images. However, such assistance raises only contributory liability issues, see Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 929-30 (2005), Napster, 239 F.3d at 1019, and does not constitute direct infringement of the copyright owner’s display rights.”

This is an extremely interesting decision for many reasons. Firstly, it brings back a bit of common sense to copyright litigation. It still leaves open the issue of secondary or contributory liability, but it legitimises the common practice undertaken everywhere on the Internet of making images available through inline tags.

Now we need a case in the UK on this, and also a sensible decision on linking.

4 Comments

AndrewDucker · May 17, 2007 at 2:24 am

Surely creating smaller versions of the original images is copyright infringement?Google caches images and presents them to the user – are they claiming that that's fair use?

Andres Guadamuz · May 17, 2007 at 3:27 am

Hi Andrew. The point made by the court is is that the images are not smaller versions of the original, they are the original displayed and resized through an HTML tag, so there is no copying, and therefore no direct infringement. Caching is an exception to copyright law (I think in the US as well under the DMCA, I know that it is an exception here in Europe). The Court ruled on caching:"Because Google’s cache merely stores the text of webpages, our analysis of whether Google’s search engine program potentially infringes Perfect 10’s display and distribution rights is equally applicable to Google’s cache.Perfect 10 is not likely to succeed in showing that a cached webpage that in-line links to full-size infringing images violates such rights. For purposes of this analysis, it is irrelevant whether cache copies direct a user’s browser to third-party images that are no longer available on the third party’s website, because it is the website publisher’s computer, rather than Google’s computer, that stores and displays the infringing image."Fair use only applies if the images are actually infringing.

AndrewDucker · May 18, 2007 at 1:49 am

The weird thing is that Google _does_ cache images.http://tbn0.google.com/images?q=tbn:LlzPiVU4Y6zUQMis from its cache of pics from my photo hosting, for instance.