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An online nudie magazine’s copyright infringement suit against Google will now require some complex legal maneuvering after the Ninth Circuit U.S. Court of Appeals panel severely limited what the plaintiff 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 posting online thumbnail-sized versions of images from the magazine. A district court had found at a preliminary hearing that Google’s images probably constituted direct infringement. But the Ninth Circuit disagreed in its May 16 ruling. 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 the U.S. Supreme Court’s 1990 opinion in Stewart v. Abend, 495 U.S. 207. “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. Ninth Circuit Judges Cynthia Hall and Michael Daly Hawkins concurred in the unanimous opinion. The Ninth Circuit panel, however, left the door open for Perfect 10 to argue on remand that Google and another defendant, 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. Technically, Google does not store photographic images. Instead, it provides 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,” said the Ninth Circuit panel. 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 a preliminary injunction that a lower district court had imposed against Google, which prohibited it from publicly displaying thumbnail images from that magazine. The injunction, however, did not prohibit Google from linking to third-party Web sites that display the magazine’s images. But Google isn’t entirely home free. If Perfect 10 proves on remand that Google knew that users could get infringing magazine 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 large number of amicus briefs filed on behalf of either Google or Perfect 10 illustrates the growing battle over IP rights involving digital material. The Electronic Frontier Foundation and the 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. In a statement issued in the wake of the Ninth Circuit ruling, Kent Walker, Google’s general counsel, 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.” Robert Clarida, a New York attorney who co-authored an amicus brief with the media photographers group, argued that 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. Millie Lapidario is a reporter at The Recorder.

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