Judge to Google: Some thumbnails are illegal

[PornoDoggy]

from http://arstechnica.com/news.ars/post/20060222-6234.html

Google, not generally used to losing in court, now finds itself on the receiving end of a preliminary injunction over image search results. The case began back in 2004 when Perfect 10, publisher of the "the world's most beautiful natural women," sued both Amazon (targeting their A9 subsidiary) and Google for copyright infringement. At issue was the fact that both search engines displayed thumbnail images of Perfect 10's natural women. The company felt that this was making it more difficult to extract US$25.50 a month from its customers, and sued.

Google and Amazon disagreed, citing the well known Kelly v. Arriba Soft case which found that the creation of thumbnails by a search engine was legal, even if the material was copyrighted, because they were 1) small and 2) had a "transformative" use. A judge has decided (PDF) that this argument isn't good enough for Google (the Amazon decision is coming separately), in part because Google makes money from pirate sites that have ripped off Perfect 10's pictures and now display them as their own. Their use of Perfect 10's copyrighted images indirectly brings money to Google because they are also enrolled in AdSense, so Perfect 10 argues that Google's use of these thumbnails cannot be simply "transformative." The judge agreed.

"But unlike Arriba, Google offers and derives commercial benefit from its AdSense program," writes the judge on p. 26 of his decision. "If third-party web sites that contain infringing copies of P10 photographs are also AdSense partners, Google will serve advertisements on those sites and split the revenue generated from users who click on the Google-served advertisements. Google counters that its AdSense Program Policies prohibit a web site from registering as an AdSense partner if the site's web pages contain images that appear in Google Image Search results... However, Google has not presented any information regarding the extent to which this purported policy is enforced. Nor has it provided examples of AdSense partners who were terminated because of violations of this policy... AdSense unquestionably makes Google's use of thumbnails on its image search far more commercial than Arriba's use."

[TheEnforcer]

It's an interesting legal ruling that may have some big impact on the way many companies do business. The fallout should be interesting assuming people pay attention to it.

[JR]