Adult entertainment firm claims search results directly violate copyrights
A federal court judge has concluded that an image search service run by Google Inc. infringes on the copyrights of adult entertainment company Perfect 10 Inc., by displaying small versions of its images in search results.
U.S. District Judge A. Howard Matz ruled that Perfect 10, an adult-oriented Web site featuring "beautiful natural women" in the nude, has shown that Google image search probably infringes copyright law "by creating and displaying thumbnail copies of its photographs."
Judge Matz ordered both sides to craft a narrow preliminary injunction that would respect Perfect 10’s copyrights but not curtail Google’s broader right to catalog and display online images.
Google Argues: “Nude Photos Are Not Art”
In an unusual position for an Internet firm with aspirations of being a media hub, Google argues that Perfect 10 (P10)’s high-quality nude photographs are not creative.
Google argues that P10’s works are not creative because P10 "emphasizes the objects of the photographs (nude women) and [P10] assumes that persons seeking Perfect 10’s photos are searching for the models and for sexual gratification" Google contends this "implies a factual nature of the photographs."
The Court rejects this argument. The P10 photographs consistently reflect professional, skillful, and sometimes tasteful artistry. That they are of scantily-clad or nude women is of no consequence; such images have been popular subjects for artists since before the time of "Venus de Milo."
But Judge Matz said that based on evidence submitted at a preliminary injunction hearing, Google could not be held responsible when viewers click on the images and are directed to third-party sites that contain full-size images stolen from Perfect 10’s Web site.
Google said that it plans to appeal the injunction, and predicted it will have no effect on the "vast majority" of its image searches.
The Los Angeles judge said he would award Perfect 10 a preliminary injunction against Google, and gave lawyers for both sides until March 8 to propose the injunction’s wording.
Daniel Cooper, Perfect 10’s general counsel, called the ruling a victory regarding the search portion of the case and said his company would prevail on the rest of the matter at trial.
Once we get the evidence we are fighting hard to get, we are hopeful we will ultimately prevail on that aspect of the case as well, Cooper said.
Perfect 10, based in Beverly Hills–publishes a magazine and a Web site that sells access to thousands of photos of nude women.
Perfect 10 sued Google for copyright infringement in November 2004, and then in August 2005, asked for an injunction to halt Google from allegedly copying, displaying and distributing more than 3,000 Perfect 10 photos.
The company also sued Amazon.com Inc., which runs the A9 search engine, last year. The cases were consolidated. The court said it will issue a separate order in regard to Amazon, which licenses much of Google’s technology.
The photo publisher says it is plagued by copyright pirates who pay its $25.50 monthly fee and then reproduce its copyright images on sites that are indexed by Google and incorporated in its image search feature.
In a 48-page opinion, Matz agreed that Google provides "an enormous public benefit." But, he said, "existing judicial precedents do not allow such considerations to trump" copyright law.
If Google offered only its traditional search feature, optimized for computers with desktop-size screens, the outcome might have been different. But the judge noted two differences: First, the search company apparently receives AdSense advertising revenue from some of the photo-pirating sites, and second, Google’s image search also has an option for mobile phones.
At issue is Google’s search engine technology that displays thumbnail images in response to a search request. When a user clicks on a thumbnail, the page splits into two frames. The top of the page displays a narrow band that includes the thumbnail image and a warning that the thumbnail “may be scaled down and subject to copyright.” The band is hosted on computers owned by Google.
The lower part of the page is hosted by the third-party Web site that displays the full-size image.
Perfect 10 alleges that the display of the thumbnail is a direct violation of its copyright, and that the display of the larger image, even though it is hosted by a third-party Web site, constitutes a secondary copyright infringement on the part of Google.
Google did win, however, on one key point. Matz said that the "framing" feature of the company’s image search, which displays a thumbnail of the image above a rendering of the original page, did not directly infringe Perfect 10’s copyright.
While we are disappointed with portions of the ruling, we are pleased with Judge Matz’s favorable ruling on linking and other aspects of Google Image Search, Google litigation counsel Michael Kwun said in a statement. "We anticipate that any preliminary injunction will have no effect on the vast majority of image searches, and will affect only searches related to Perfect 10."
Google is facing a growing number of lawsuits that could imperil its lucrative business model, which relies in part on the ability to make "fair use" of copyright works and sell advertisements linked to trademarked keywords.
The Authors Guild sued Google in September, claiming that the Google Print Library Project violated copyright law. The Agence France Press news agency also sued Google for allegedly using photos and headlines in violation of the law.
Google won a case against Geico after a judge ruled that selling ads linked to trademarks was legal, but lost one in France. A federal judge in Nevada ruled last month that Google’s cache feature is "fair use" of even copyright works.
The Perfect 10 lawsuit has received a high level of public attention, not least because of the 2003 Arriba Soft decision from the 9th Circuit Court of Appeals. In that ruling, the court sided with an image search engine over a photographer who claimed the automatically generated thumbnails amounted to copyright infringement.
This case is different, Judge Matz ruled, in part because of a financial relationship with AdSense. Although Google claims its policy prohibits such Web pages from being included in its image search, the judge said "Google has not presented any information regarding the extent to which this purported policy is enforced."
A November 2004 post on Overlawyered.com, which boasts of chronicling the "high cost of our legal system," quips that Perfect 10, is "an unsuccessful California pornography business that has branched out into the litigation business."
The Electronic Frontier Foundation, a digital-rights group in San Francisco, filed a friend-of-the-court brief siding with Google.
It argues that creating thumbnails is "fair use" under copyright law, "both because it promotes the progress of digital innovation and because it enhances public access to knowledge and information online."
Judge Matz ruled that Perfect 10 had submitted enough evidence to conclude that it would succeed in a trial on its claim of direct copyright infringement. “But he said Perfect 10 had not provided enough evidence to convince him that the company would likely prevail on the issue of secondary infringement at trial.”
Amazon.com, which licenses technology from Google, also has been named as a defendant. The two cases have been consolidated, and Judge Matz said he would publish a second order dealing with Amazon’s potential liability.
The decision is only a preliminary one, and the next step likely will be an appeal before the 9th Circuit. Unless the appeals court dismisses the case, a trial would have to be scheduled before a final decision–including the question of damages for copyright infringement–would be reached.