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Tiny sex images on Google get okay from court

2007-06-06 10:52:40

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."