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The 9th U.S. Circuit Court of Appeals has ruled that Google’s thumbnail versions of images from an online nude magazine does not constitute direct infringement. Perfect 10 Inc. v. Amazon.com Inc., No. 07 C.D.O.S. 5360. Perfect 10 Inc., which offers a subscriber-only service claiming to have photos of “the world’s most natural beautiful women,” sued Google Inc. in 2004 for providing thumbnail versions of images from the magazine. At a preliminary hearing, a California federal court found that Google’s images probably constituted direct infringement. The 9th Circuit has now reversed that ruling. Citing the U.S. Supreme Court’s 1990 decision, Stewart v. Abend, 495 U.S. 207, 236, the circuit court said that the magazine is unlikely 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.” Writing on behalf of the panel, Judge Sandra Ikuta said, “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.” However, the 9th Circuit left 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 magazine 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 9th 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. The ruling lifts the preliminary injunction the lower court had placed on Google, prohibiting it from publicly displaying thumbnail images from the magazine. The injunction did not, however, ban Google from linking to third-party Web sites that display Perfect 10′s images. Google isn’t entirely home free, however. 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 number of amicus briefs filed on behalf of both Google and Perfect 10 illustrates the growing battle between Internet consumers and producers. The Electronic Frontier Foundation and U.S. Internet Service Provider Association were among the groups backing Google, while the American Society of Media Photographers (ASMP) and the Motion Picture Association of America were among those supporting Perfect 10. Google 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.” According to Robert Clarida, a partner at Cowan, Liebowitz & Latman of New York 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.

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