More on Perfect 10 v. Google

By John Ottaviani

Eric will undoubtedly have more to say, but here are my immediate thoughts on this case.

Leave it to the porn industry to make copyright law on the Internet. Perfect 10 alleges that Google (and, in a separate suit, has directly, vicariously and contributorily infringed Perfect 10’s copyrights in 1000’s of pictures of models that third parties illegally downloaded and posted to the Internet. Perfect 10 went after Google because one can easily find these images if one types in the name of a model in Google’s “image search,” and, presumably, because going after Google is easier than chasing thousands of individual infringers around the world.

This decision is on Perfect 10’s motion for a preliminary injunction, and is decided on the “likelihood of success” standard, so there is a possibility that the analysis may change as the case proceeds in this court or on appeal.

Getting to the highlights, the Court (District Judge A. Howard Matz) held:

1. Google’s practice of framing and “in-line linking” to an image when one conducts an image search does not constitute a “display” of the image within the meaning of the Copyright Act, and therefore does not infringe Perfect 10’s exclusive “display” right under the Copyright Act. THe court’s rationale is that Google does not “display” the image because Google only links to the image on a third party website and does not serve or store the image. Google’s practice of framing and “in-line linking” to an image when one conducts an image search does not constitute a “distribution” of Perfect 10’s pictures in violation of Perfect 10’s copyrights because no file is transferred by Google from one computer to another when Google links to the image on the third party website.

2. Websites that steal Perfect 10’s images and post them on the Internet are direct infringers because they violate the display right, and they also violate the distribution right because the websites transfer the images to searcher’s computers.

3. Google’s practice of creating and storing “thumbnail” versions of Perfect 10’s pictures and displaying the thumbnails in response to an image search query does constitute a “display” of those pictures within the meaning of the Copyright Act. Because Google is liable on this theory, Court did not address whether Google also “distributes” the thumbnails, but the court indicated that even if Google did “distribute” the thumbnails, this automatic “distribution” likely constitutes fair use.

4. Google’s fair use defense fails because Google offers and derives commercial benefit from third party websites that carry Google sponsored advertising at the same time hosting infringing content. “Google’s thumbnails lead users to sites that directly benefit Google’s bottom line.” THe court distinguished the Kelly v. Aribasoft case (336 F.3d 811 (9th Cir. 2003)) case on this basis. Also important to the Court’s analysis is the fact that Perfect 10 has a licensing deal with a UK distributor to push thumbnail images to cell phones for subscription fees.

5. Google is not contributorily for copyright infringement because Google does not “materially contribute” to the infringement in the way Napster did. Google is not vicariously liable for copyright infringement because Google does not exercise control over the environment in which it operates. (“Google cannot shut down infringing websites or prevent them from continuing to provide infringing content to the world.”)

It seems like the court took reasonable and defensible positions here in applying 1970’s copyright law to Google’s 21st Century Internet practices. Also, Google is not Napster, but once again we see the risks of basing one’s business, or part of one’s business, on the “fair use” defense.