Intellectual Property Rights

Perfect 10, Inc. v. Amazon.com, Inc.

508 F.3d 1146 (9th Cir. 2007)

Facts

Perfect 10 published and licensed copyrighted photographs of models.
Unauthorised third-party websites displayed copies of those images.
Google Image Search indexed the web and displayed reduced-size “thumbnail” versions of images.
When users selected a thumbnail, Google used in-line linking and framing to show the full-size image stored on the third-party website.
Google itself stored the thumbnail copies but generally did not store the full-size infringing photographs.
Perfect 10 alleged direct, contributory and vicarious infringement.
It also claimed that thumbnails harmed its market for reduced-size images distributed to mobile users.
The District Court granted an injunction concerning thumbnails but rejected much of the claim regarding full-size images.
Google appealed.

Whether Google directly displayed full-size images stored on third-party servers.
Whether its stored thumbnails were protected by fair use.
Whether Google could be secondarily liable after receiving notice of specific infringements.

Direct infringement requires violation of an exclusive right by the defendant.
Under the “server test,” a website displays a copy where it stores and transmits the image data from its own server.
In-line linking to an image stored elsewhere does not itself create a stored copy on the linking server.
Search-engine thumbnails may be fair use where they serve a transformative indexing function.
Contributory liability may arise where a service provider:
knows of specific infringement; and
materially contributes to it.
Fair use depends upon purpose, nature, amount and market effect.

Google directly stored and transmitted thumbnails, so the fair-use question applied to those copies.
The thumbnails transformed the photographs from aesthetic entertainment into tools directing users to information on the internet.
Search functionality served a substantially different purpose from Perfect 10’s original publication of full-size photographs.
The images were creative and copied in full, which favoured Perfect 10.
However, complete copying was necessary for users to recognise the images during search.
The reduced resolution and search context limited substitution.
Perfect 10 identified a possible mobile-image market, but the evidence of actual harm was insufficient to outweigh Google’s transformative use and public benefit.
For full-size images, Google did not store the files.
The user’s browser retrieved them directly from third-party servers.
Google therefore did not directly infringe the display right merely by providing HTML instructions or frames.
However, secondary liability remained possible.
Specific notices could inform Google of particular infringing websites.
If Google materially assisted continued infringement despite such knowledge, contributory liability could arise.
The District Court had not fully applied that standard.
The Court distinguished direct technical transmission from the separate question of whether linking knowingly facilitated another party’s infringement.

The Ninth Circuit held that Google’s thumbnail display was likely fair use.
Google did not directly display full-size images that remained stored on third-party servers.
The contributory-infringement issues required further examination based on specific knowledge and material assistance.
Use this case for: search-engine thumbnails can be transformative fair use, while in-line linking does not constitute direct display where the full image remains on another server