Google Image Search Thumbnails Are Enjoined by Los Angeles District Court Judge - They Are Commercial and Not a Fair Use Under Copyright Law

Case: Perfect 10 v. Google, Case No. CV 04-9484 AHM (C.D. Cal. 2/21/06)

The One Sentence Summary: Judge Matz of the Central District of California granted a motion for preliminary injunction against Google, holding that it is likely that Google directly infringed the copyrights of plaintiff Perfect 10 in its copyrighted adult photographs by displaying thumbnails of those images, and that Google's use was likely not a fair use because its thumbnails were accompanied by advertisements and the thumbnails could be downloaded and affect the market for Perfect 10's works.



District Court Holdings:

• The court applied the server test instead of the incorporation test, holding that Google's use of frames and in-line links did not constitute a display for purposes of Perfect 10's direct copyright infringement claim.
• Google did "display" copyrighted images by displaying a grid of thumbnails stored on its servers, and therefore directly infringed Perfect 10's copyright.
• On the first factor of the fair use test, commercial use, Google's use was commercial because Google's AdSense program derived revenue from clicks on advertisements appearing next to the thumbnail images.
• Google's display of thumbnails was highly transformative in that Google organizes the images for search. However, it was also consumptive because mobile phone users can download the thumbnails and thereby avoid paying Perfect 10 for downloads.
• The nature of the copyrighted work was creative, and this factor weighed slightly for Perfect 10.
• As to the amount and substantiality of the work copied, Google took no more than necessary to provide its search features.
• Google harmed the potential market for Perfect 10's images by substituting for downloads.
• Google is not likely to prevail in its fair use defense "despite the enormous public benefit that search engines such as Google provide."
• Local browser caches did not provide a basis for liability because it is a fair use.
• Google did not materially contribute to possible direct infringement by users, distinguishing the Napster case.
• Google is likely to prevail on vicarious liability because it does not have the right and ability to control infringement by third party sites.