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Tiny sex images on Google get okay from court
Wed May 16, 2007 7:04PM EDT
By Adam Tanner
SAN FRANCISCO (Reuters) - A U.S. appeals court lifted a preliminary injunction
on Wednesday against Google Inc. from showing thumbnail-size photos from
sexually explicit Internet sites, but said the company might be liable for
allowing links to sites displaying pirated photos.
The case is the latest in which courts are seeking to strike a balance between
fostering the free flow of information on the Internet and protecting
copyrighted content.
A lower court had found that Google's thumbnail images violated the copyright
of adult magazine and Web publisher Perfect 10 Inc., but said the Internet
search company was probably not responsible for displays of the underlying
images from Perfect 10's Web site.
The U.S. 9th Circuit Court of Appeals based in San Francisco reversed those
findings on Wednesday.
"We conclude that Perfect 10 is unlikely to be able to overcome Google's fair
use defense and, accordingly, we vacate the preliminary injunction regarding
Google's use of thumbnail images," Sandra Ikuta wrote for a three-judge panel.
Perfect 10, which boasts of "The World's Most Beautiful Natural Women," first
objected to Google about the thumbnail images in 2001, saying Google linked to
Web sites that republished images of their nude models without authorization.
Perfect 10 charges $25.50 per month for access to its site.
They sued in 2004, alleging copyright infringement and in 2005 filed a similar
claim against Amazon.com Inc. and its A9.com subsidiary, saying they provided
links to Google search results. A court granted a partial preliminary
injunction in 2006.
The lower court's ruling had threatened to bar Google from featuring thumbnail
pictures -- small versions of photos that are linked to a bigger version of the
same picture. But the injunction was stayed pending further legal review, which
meant Google continued to display the thumbnail images.
A number of photographer associations and the Motion Picture Association of
America made legal filings in support of Perfect 10.
TRANSFORMATIVE NUDES
Judge Ikuta found that the thumbnails were not an infringement as they fell
under the category of "highly transformative" work.
"We conclude that the significantly transformative nature of Google's search
engine, particularly in light of its public benefit, outweighs Google's
superseding and commercial uses of the thumbnails in this case," she wrote.
On a second issue of Google's liability for copyright infringement by linking
to full-size images, the appeals court left the door open for Perfect 10's
argument.
"There is no dispute that Google substantially assists web sites to distribute
their infringing copies to a worldwide market and assists a worldwide audience
of users to access infringing materials," the ruling found.
"Google could be held contributorily liable if it had knowledge that infringing
Perfect 10 images were available using its search engine, could take simple
measures to prevent further damage to Perfect 10's copyrighted works, and
failed to take such steps."
The ruling said a lower court should re-examine the issues against both Google
and Amazon.
Google welcomed the 9th Circuit ruling.
"We are delighted that the court affirmed long-standing principles of fair use,
holding that Google's image search is highly transformative by creating new
value for consumers," the firm's general counsel, Kent Walker, said in a
statement. "Google services respect intellectual property and help people
around the world find what they're looking for."