Intellectual Property Law

: Cogito Ergo Teneo; an intellectual property blawg

Copyright Law: Perfect 10 v. Google 051607

By Sean Fowler

Perfect 10 v. Google (& Amazon), 9th U.S. Circuit Court of Appeals, Nos. 06-55405/06-55406/ 06-55425/06-55759/06-55854/06-55877 (May 16, 2007):

Issue:
Once upon a time, Perfect 10 sued Arriba for displaying thumbnails and lost. According to the court there, reference thumbnails were a very transformative use of pornographic pictures. Perfect 10 cut a deal with a cell phone media purveyor to allow such purveyor to display and distribute thumbnails via cell phones. Perfect 10 sued Amazon and Google (but mostly Google) for display and distribution infringement. The lower court found that linking to third parties that displayed the images was not infringement, but the display of thumbnails was infringement. Unlike in the prior case law, there was now a commercial use for thumbnails, and the court felt that the display of thumbnails on Google unreasonably superseded this use. Google and Perfect 10 both appealed from the partial grant of preliminary injunction.

Pertinent issues of copyright law:
1) Does linking to full-size images constitute a copyright violation?
2) Does a thumbnail infringe copyright?
3) Does the Copright Act provide relief from consumer confusion?
4) Is Google secondarily liable for infringement?

Conclusions:
Google never actually displays the full-sized images. Google doesn't actually store the full-sized images. Therefore, Google's linking to third party infringers of copyright does not constitute a direct copyright violation.

It was already decided that a thumbnail is a transformative work. The lower court believed that the commercial nature of Google's AdWords feature along with Perfect 10's commercial use of its own thumbnails weighed in more than the transformative use. The appeals court disagreed. The appeals court found that -- though the commercial use of the thumbnails could very well be superseded by the Google thumbnails -- Perfect 10 did not show that this was in fact happening and, in light of the immense public benefit that Google's service provides, this potential damage to Perfect 10's business was not enough to outweigh the transformative value of the thumbnails.

While clicking on a thumbnail does bring up the third-party infringer's site as framed by a Google frame, and while this Google framing of the infringing site might be confusing to some, the Copyright Act does not have provisions protecting rights holders from consumer confusion. That, said the court, is the realm of the Trademark Act.

Google did not encourage in any way the infringer's initial or continued violations, so it could not be contributorily liable. Google may make money off the continued infringement, but Google has no contracts with the third parties. As such, Google has no means to stop the infringers from infringing, so it can not be held vicariously liable. It wasn't like the infamous swap meet case, where the contracts with participants would have allowed the organizer to prohibit counterfeit sales.

Full post as published by Cogito Ergo Teneo; an intellectual property blawg on November 06, 2007 (boomark / email).