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An online nudie magazine’s copyright infringement suit against Google now requires some complex legal maneuvering after the Ninth Circuit U.S. Court of Appeals panel severely limited what it could argue. Perfect 10 magazine, which offers a subscriber-only service that claims to have photos of “the world’s most natural beautiful women,” sued Google in 2004 for providing thumbnail versions of images from the magazine. A district court had found at a preliminary hearing that Google’s images probably constituted direct infringement. But on Wednesday, the federal appellate court disagreed. The magazine is not likely to prevail against Google’s fair-use defense, which allows the courts to avoid rigidly applying the copyright statute when “it would stifle the very creativity which that law is designed to foster,” the court ruled, citing Stewart v. Abend, 495 U.S. 207, 236 (1990). “We conclude that the significantly transformative nature of Google’s search engine, particularly in light of its public benefit, outweighs Google’s superseding and commercial uses of the thumbnails in this case,” wrote Judge Sandra Ikuta, who authored the opinion. Judges Cynthia Hall and Michael Daly Hawkins concurred. They did, however, leave the door open for Perfect 10 to argue on remand that Google and Amazon.com are secondarily liable for copyright infringement. The lower court had consolidated the publisher’s suit against Google with a similar copyright infringement suit against Amazon.com. Technically, Google does not store photographic images; it gives HTML instructions that direct the browser to the images published on other Web sites. “Providing these HTML instructions is not equivalent to showing a copy,” the Ninth Circuit opinion stated. Google does not display full-size images that users can reproduce. So although Google may facilitate a user’s access and may be open to contributory liability, the court said, the assistance it provides does not constitute direct infringement of Perfect 10′s display rights.
‘Google’s image search is highly transformative by creating new value for con-sumers. Google services respect intellectual property and help people around the world find what they’re looking for.’

Kent Walker Google

The ruling Wednesday lifts the preliminary injunction the district court had placed on Google, which prohibited it from publicly displaying thumbnail images from that magazine. The injunction did not, however, ban Google from linking to third-party Web sites that display Perfect 10′s images. But Google isn’t entirely home free. If Perfect 10 proves on remand that Google knew that users could get infringing Perfect 10 images through the search engine � and that Google was able to take simple measures to prevent further damage and failed to take those measures � then the search engine could be held contributorily liable. The sheer number of amicus briefs filed on behalf of both Google and Perfect 10 illustrates the growing battle between consumers and the producers of the material they’re looking to consume. The Electronic Frontier Foundation and U.S. Internet Service Provider Association were among the groups backing Google, while the American Society of Media Photographers and the Motion Picture Association of America were among those supporting Perfect 10. Google executives weren’t available to discuss the ruling, but in a prepared statement, General Counsel Kent Walker said the company is “delighted that the court affirmed long-standing principles of fair use, holding that Google’s image search is highly transformative by creating new value for consumers. Google services respect intellectual property and help people around the world find what they’re looking for.” A spokeswoman from Amazon.com declined to comment because litigation is still pending. Perfect 10 General Counsel Daniel Cooper in Beverly Hills did not return messages left throughout the day. According to Robert Clarida, a New York attorney who co-authored an amicus brief with the ASMP, the court misinterpreted the Federal Copyright Act of 1976 by pointing out that Google did not actually store the copyrighted material on its server. The legislation does not require that Google store the material to violate Perfect 10′s display right. “The court really gets that fundamentally wrong,” said Clarida, a partner at Cowan, Liebowitz & Latman. Victor Perlman, an ASMP attorney, said that, although the opinion appeared “a pretty clear vindication of what Google does,” he expected similar copyright lawsuits to come up with differing decisions. Eventually, the U.S. Supreme Court will have to address the issue, he said. The case is Perfect 10, Inc. v. Amazon.com, Inc., 07 C.D.O.S. 5360 ( .pdf).

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