Google Image-Infringement Loss Has Silver Lining, Group Says
Google got smacked down in court for making thumbnail images of an adult publisher’s copyrighted images in search results, but the ruling is quite narrow on issues of more import for the entire Web, a digital-rights group said Wed. The Electronic Frontier Foundation (EFF), which filed an amicus brief on Google’s behalf in Perfect 10 v. Google (WID Oct 14 p2), disputed the court’s reasoning on the image infringement. But staff attorney Fred von Lohmann said the U.S. Dist. Court, L.A.’s rejection of Perfect 10’s other arguments -- that “in-line linking” of images was necessarily infringement and that Google assumed secondary liability for displaying infringed images from other sites -- was “a lot of good for the Web.”
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Perfect 10 has filed a torrent of suits against sites alleged to display its images without authorization. It’s gone beyond originating sites to search engines that pull up those images, including Amazon’s A9.com (WID July 5 p1). Google has said it actively stores copies of the thumbnails, not just generating them dynamically from queries. The court consolidated the Google and Amazon suits, but said it will address Perfect 10’s motion against Amazon later, considering Amazon licenses from Google “much of the technology” Perfect 10 is challenging. Google and Perfect 10 were instructed to devise a joint proposal for preliminary-injunction language to apply against Google by March 8.
The court cited an arrangement between Perfect 10 and U.K. firm Fonestarz Media as a key component in finding that Google’s thumbnails probably infringed Perfect 10’s images. Under the deal, Fonestarz sells reduced-sized copyrighted images from Perfect 10 for viewing on cellphones -- the only such distribution deal Perfect 10 has. Google’s thumbnails compete directly with that paid-subscription service, the court said. Google has “strong incentive” to link to 3rd- party sites that “host AdSense advertisements” carrying infringed images, since it splits ad revenue with AdSense partners. Google provided no evidence it enforces its policy preventing sites containing infringed images from registering as AdSense partners, or that it has ever dropped a partner for infringement, the court said. EFF’s von Lohmann said the court wasn’t “adequately sensitive to indications that the [Perfect 10-Fonestarz deal] was a sham concocted for this litigation” -- the court itself noted the distribution deal took effect after Perfect 10 sued.
“In-line linking” -- in which one site shows content from another without the visitor leaving the first site -- has 2 possible definitions for “display,” the court said. Under the “server” test, the source site actually is displaying the content, since the image is hosted there, and the in-line linking site is simply “serving” the image. Perfect 10 asked the court to define display as “incorporating” content, which would count as infringement. The court called both tests “susceptible to extreme or dubious results,” but said the incorporation test would “cause a tremendous chilling effect on the core functionality of the Web -- its capacity to link, a vital feature of the Internet that makes it accessible, creative and valuable.” The server test is better, since “website operators can readily understand [it] and courts can apply it relatively easily,” the court said: “Merely to index the Web so that users can more readily find the information they seek should not constitute direct infringement,” unlike hosting copyrighted content.
Case law on in-line linking is ambiguous and doesn’t address the particulars of this case, the court said, citing a partial reversal by the U.S. Appeals Court, San Francisco, of an infringement decision in the only other case involving search engine-created thumbnails. In Kelly v. Arriba Soft, the appeals court withdrew its direct-infringement finding against Arriba Soft, but didn’t say whether in-line linking is inherently infringement, the L.A. court said.
Google Litigation Counsel Michael Kwun said the firm is “disappointed” with parts of the ruling but “pleased” the judge emphasized any injunction must be “narrowly tailored” to avoid substantial change in its image search. The injunction will “have no effect on the vast majority of image searches,” and in any case, Google will appeal any injunction, he added. Perfect 10 couldn’t be reached for comment.
The court’s balance between Perfect 10 and Google gave “three major victories for the Web at large,” von Lohmann said: “Had Perfect 10 won on [in-line linking], every in- line link could potentially trigger automatic liability unless you got prior permission for the link.” Similarly, “creating the audience” for infringing websites can’t be considered infringement itself under the court finding, he said. On the “display” definition, a Perfect 10 win would mean “every person who views a webpage that includes an infringing images becomes an infringer,” he said. It’s unlikely the court will impose an injunction against Google that will change its image-search practices more than trivially, von Lohmann added.