Legal Research

German court kills google image search for germans?

By scott

The Regional Court of Hamburg has apparently ruled that the use of thumbnail images in preview of search results by Google does infringe copyright. The Court ruled that no new work is created by thumbnails. This puts the German courts at odds with the American courts where court decisions in Kelly v Arriba and more recently in Google v Perfect 10, have ruled that Google’s use of thumbnails was fair-use and that, the transformative nature of the thumbnails - it enhances the search functionality - is “more significant than any incidental superseding use” [In the Perfect 10 case, the case has been remanded back to the District Court to decide whether Google (and Amazon) is liable for contributory infringement - as the District Court failed to consider whether Google (and Amazon) knew of infringing activities yet failed to take reasonable and feasible steps to block access to infringing images on third party sites.]

The German cases, involving Google’s preview of a picture by German photographer Michael Bernhard, and a number of comics by Thomas Horn, the creator of the fashion goods collection Psykoman.

Unsurprisingly, Google was not pleased with the verdicts. Google spokesperson, Kay Oberbeck, called the verdict “bad for Internet users and users of image searches in Germany generally. It is also bad for tens of thousand page operators who base their business on the image search. The verdict puts German Internet users back into the digital stone age.”

As the court ruling places the onus on search engines to determine what images they discover are subject to copyright before indexing them and creating a thumbnail, the decision could lead to Google - and other search engines (as both parties also targeted AOL, T-Online, and Yahoo) blocking all image search in Germany.

Google will appeal both rulings.

Germany has not proved a happy hunting ground for Google. It was here that their plans to brand their email service gMail globally first hit to skids, when they were unable to muscle Daniel Giersch out of the picture, who already had prior German trade mark registration for g-mail.

Cases such as these always perplex me somewhat. Whilst I have yet to see the finer details of the German cases, it does at least seem that the parties merely objected to Google creating thumbnails of images from their sites. This does immediately beg the question as to why you would place the images on your website if you didn’t want people to see them/ be able to find them? If you decided that wasn’t what you wanted then you could place them in a members area of the site or just edit the website robot.txt file to prevent Google and other search engines from indexing the images.

At least in the case of Perfect 10 (who are also now suing Microsoft) I can see how they would have valid financial concerns relating to Google indexing and creating thumbnails of their content that is being illegally displayed on third party sites - Perfect 10 had a third party licensing deal in place with Fonestarz to deliver smaller (thumbnail size) versions of their content to UK mobile phone subscribers. Obviously, due to the existence of thumbnails of their content hosted on third party sites, a user could download the same images that were being licensed to Fonestarz, at a cost, for free.

That said, even here, you could argue that Perfect 10 should be pursuing those directly infringing their copyright, not a search engine. However: Napster, Grokster, Youtube etc readily show us, this is not how these things work.

Full post as published by Information Overload on October 14, 2008 (boomark / email).