Google’s ‘thumbnails’ infringe copyrights

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A US judge ruled on Tuesday that Google’s search engine for images had breached the copyright protection of a publisher of pornographic photographs, dealing one of the first legal blows to the company’s core technology.

However, the internet search company said that, although it was “disappointed” by the finding, it believed the ruling would have “no effect on the vast majority of image searches” it conducts.

In an opinion issued in US district court in the central district of California, Judge Howard Matz said that he would issue a preliminary injunction to prevent Google displaying “thumbnail”-sized images of nude women that belonged to the publisher, Perfect 10.

Google’s search engine for images returns small pictures in its results to a search query, a use that Google claims falls under the “fair use” protection of copyright legislation.

In his ruling, Judge Matz wrote: “Although the court is reluctant to issue a ruling that might impede the advance of internet technology, and although it is appropriate for courts to consider the immense value to the public of such technologies, existing judicial precedents do not allow such considerations to trump a reasoned analysis of… fair use.”

Google had failed three of the four tests of the “fair use” defence, the judge ruled. Since the company sells adverts to run alongside its search results, the image search service does not fall under the “non-commercial” test, he wrote. Also, the “creative” nature of the images meant they should have protection, though this counted “only slightly” in favour of Perfect 10, he said. Finally, Google’s thumbnail-sized pictures had a direct impact on Perfect 10’s ability to make money from its images, since it had licensed a UK company to distribute similar-sized pictures to mobile ‘phones.

The only fair use defence on which Google prevailed was its argument that it had not produced more of Perfect 10’s images than was needed for the purposes of its search service.

Despite the ruling against Google, Judge Harz concluded that the company’s practice of linking to and displaying a copy of the website where it had found the image did not breach copyright, even in cases where the website it showed did not have rights to the pictures. He also said that Google was not secondarily liable for carrying the infringing images.

“While we’re disappointed with portions of the ruling, we are pleased with Judge Matz’s favorable ruling on linking and other aspects of Google Image Search,” Michael Kwun, Google’s litigation counsel, 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.”

The judge called for both sides to present suggestions for how the injunction should be worded at a hearing to be held on March 8.

“Judge Matz noted that any preliminary injunction needs to be very narrowly tailored, in order to avoid impeding the “immense value to the public” of technologies such as Google Image Search,” said Mr Kwun.

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