Google image search – two thumbs down

Reproducing copyrighted images without permission is an infringement of copyright law — everybody knows that. But what about a search engine that shows you thumbnailed versions of those images? Is that infringement too? According to U.S. District Court Judge Howard Matz, yes it is. The judge just ruled in a case involving Perfect 10, a provider of “adult” images, that Google’s image search effectively infringed on the company’s copyright over those images, just by displaying the tiny thumbnail versions of those photos.

There were actually a couple of different issues being considered in the case, as described by my friend Paul Kedrosky. One was whether the displaying of thumbnails represented infringement, and another was whether displaying the entire image on a third-party website (which had acquired the image illegally) constituted “secondary” infringement. The judge found that there wasn’t enough evidence to conclude that Google infringed in a secondary way — although he did say that he found it interesting that Google ran AdSense ads on many of the infringing sites, which he said changed the nature of the relationship with these “third-party” infringers.

However, he did find that Google had infringed on the company’s copyright simply by generating thumbnails, in part because Perfect 10 sells thumbnail-sized photos to cellphone users, and therefore Google’s behaviour might potentially eat into this market. That, among other things, disqualified the search company in the judge’s mind from being excused of copyright infringement by the “fair use” principle, which allows other parties to make use of copyrighted content in a limited way, provided they don’t either make money from it or cause the copyright holder to lose money.

How this will affect Google’s image search remains to be seen. But the courts are clearly interested in how the search company’s business affects copyright, and this decision could be the first of many — given the unfavourable attention that Google has already gotten from book publishers and newspaper owners.

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