The New Perfect Ten on Infringing Uses of Online Photo Links and "Framing"
L.A. Times reporter Dawn Chmielewski wins the tech-legal lede of the day contest by reporting that
the U.S. 9th Circuit Court of Appeals on Monday reaffirmed its earlier support for the socially redeeming value of searching the Internet for nudie pictures.
The San Francisco court, in reviewing a case it initially considered in May, reiterated its finding that Google could display tiny versions of photographs by Perfect 10 Inc., a Beverly Hills-based adult publisher, in search results, even when those images were copyrighted.
That opinion affirming in part, reversing in part, and remanding to the District court is here.
And that report, by the Los Angeles Times, is almost right.
The Ninth Circuit instructed the District Court to make further factual inquiries to determine whether Google and Amazon are contributorily liable for infringing uses by other websites. As the Court held:
Google could be held contributorily liable if it had knowledge that infringing Perfect 10 images were available using its search engine, could take simple measures to prevent further damage to Perfect 10's copyrighted works,and failed to take such steps.
The best analysis of the opinion on the web right now is Eric Goldman's Technology and Marketing Law Blog post Perfect 10 v. Amazon Opinion Amendment--Ninth Circuit Does 180 on Fair Use Burden for Preliminary Injunction here.
Quotes that form the meat of the opinion below:
HOLDING ON DIRECT INFRINGEMENT (GOOGLE)
In this case, Google has put Perfect 10’s thumbnail images . . . to a use fundamentally different than the use intended by Perfect 10. In doing so, Google has provided a significant benefit to the public. Weighing this significant transformative use against the unproven use of Google’s thumbnails for cell phone downloads, and considering the other fair use factors, all in light of the purpose of copyright, we conclude that Google’s use of Perfect 10’s thumbnails is a fair use. . . . . We conclude that Google is likely to succeed in proving its fair use defense and, accordingly, we vacate the preliminary injunction regarding Google’s use of thumbnail images.
HOLDING ON CONTRIBUTORY INFRINGEMENT (GOOGLE)
The district court did not resolve the factual disputes over the adequacy of Perfect 10’s notices to Google and Google’s responses to these notices. Moreover, there are factual disputes over whether there are reasonable and feasible means for Google to refrain from providing access to infringing images. Therefore, we must remand this claim to the district court for further consideration whether Perfect 10 would likely succeed in establishing that Google was contributorily liable for in-line linking to full-size infringing images under the test enunciated today.
HOLDING ON VICARIOUS INFRINGEMENT (GOOGLE)
Because we conclude that Perfect 10 has not shown a likelihood of establishing Google’s right and ability to stop or limit the directly infringing conduct of third-party websites, we agree with the district court’s conclusion that Perfect 10 “has not established a likelihood of proving the [control] prong necessary for vicarious liability.”
HOLDING ON DMCA DEFENSE (GOOGLE)
In revisiting the question of Perfect 10’s likelihood of success on its contributory infringement claims, the district court should also consider whether Google would likely succeed in showing that it was entitled to the limitations on injunctive relief provided by title II of the DMCA.
HOLDING AS TO AMAZON FOR DIRECT AND CONTRIBUTORY INFRINGEMENT
We agree that Perfect 10 has not shown a likelihood that it would prevail on the merits of its claim that Amazon.com directly infringed its images. Amazon.com communicates to
its users only the HTML instructions that direct the users’ browsers to Google’s computers (for thumbnail images) or to a third party’s computer (for full-size infringing images). Therefore, Amazon.com does not display or distribute a copy of the thumbnails or full-size images to its users.We also agree with the district court’s conclusion that Amazon.com does not have “the right and ability to supervise the infringing activity” of Google or third parties. The district court did not clearly err in concluding that Amazon.com lacked a direct financial interest in such activities. Therefore, Perfect 10’s claim that Amazon.com is vicariously liable for third-party infringement is unlikely to succeed.
The district court . . . erred in its secondary liability analysis because it failed to consider whether . . . Amazon.com knew of infringing activities yet failed to take reasonable and feasible steps to refrain from providing access to infringing images. . . . The question whether . . . Amazon.com [is] secondarily liable, and whether [it] can limit that liability pursuant to title II of the DMCA, raise fact-intensive inquiries, potentially requiring further fact finding, and thus can best be resolved by the district court on remand.
RATIONALE SUPPORTING THE FAIR USE HOLDING (GOOGLE)
The purpose and character of the use factor:
Although an image may have been created originally to serve an entertainment, aesthetic, or informative function, a search engine transforms the image into a pointer directing a user to a source of information. [A] search engine provides social benefit by incorporating an original work into a new work, namely, an electronic reference tool.
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. . . . the transformative nature of Google’s use is more significant than any incidental superseding use or the minor commercial aspects of Google’s search engine and website. Therefore, this factor weighs heavily in favor of Google.
The nature of the copyrighted work factor:
Once Perfect 10 has exploited [its] commercially valuable right of first publication by putting
its images on the Internet for paid subscribers, Perfect 10 is no longer entitled to the enhanced protection available for an unpublished work. Accordingly the district court did not err in holding that this factor weighed only slightly in favor of Perfect 10.The amount and substantiality of the portion used factor.
Because the reproduction of only a portion of a photograph would not serve Google's indexing purpose, this factor does not favor either party.
The effect of use on the market factor.
[Although] the district court reasoned that persons who can obtain [thumbnail] Perfect 10 images free of charge from Google are less likely to pay for a download, and the availability of Google’s thumbnail images would harm Perfect 10’s market for cell phone downloads . . . the district court did not make a finding that Google users have downloaded thumbnail images for cell phone use. This potential harm to Perfect 10’s market remains hypothetical. We conclude that this factor favors neither party.
