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San Francisco-Google’s popular image search service might be in legal jeopardy. A Los Angeles federal judge ruled recently that the Internet search engine’s image-search feature, which displays thumbnail versions of images found on other Web sites, probably infringed a Web pornographer’s copyrights. In a preliminary ruling, U.S. District Judge A. Howard Matz reluctantly sided with Perfect 10, a Beverly Hills, Calif., adult entertainment publisher, in its copyright claim against Google Inc. The judge acknowledged that Google’s image-search engine provides “enormous public benefit,” but because Perfect 10 also sells downloadable thumbnail versions of its nude photos, Google is unlikely to prevail in its fair use claim. In its complaint filed last year, Perfect 10 claims that Google directly infringed its copyright by displaying the thumbnail photos on its Web sites and aided other infringers by directing its users to infringing Web sites. Arguing fair use In court, Google admitted that it did violate Perfect 10′s copyrights by displaying the thumbnail versions of its nude photos, but argued that its use is considered fair use under copyright law. “Google’s use of thumbnails to simplify and expedite access to information is transformative of [Perfect 10's] use of reduced-size images to entertain,” Matz wrote. But, he added, “Google’s use of thumbnails likely does harm the potential market for the downloading of P10′s reduced-size images onto cell phones.” Matz threw out Perfect 10′s claim that Google aided others in violating its copyright. The ruling came as a surprise to some copyright attorneys watching the case, who say the judge had ventured out a bit further than the established ruling on the image-search engine. “I thought there was already solid precedent on the fair use issue on thumbnails,” said Laurence Pulgram, a partner in Fenwick & West’s San Francisco office. “This just shows us how difficult it is to predict what a court may or may not find fair use.” The prevailing case law on the image-search engine, Kelly v. Arriba Soft Corp., 336 F.3d 811, 820, held that thumbnail images of copyrighted works constituted fair use under the copyright law. But in making a distinction between a fair use and unfair use of thumbnail images, the court only makes the issue more confusing, Pulgram said. “The court is building a standard that only a lawyer could love,” he added. Matz granted Perfect 10′s request for a preliminary injunction, and gave lawyers for both sides until March 8 to propose the injunction’s wording.

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