Google and A9 May Stop Showing Perfect 10s

Adult publisher Perfect 10 won a partial victory in its efforts to stop search engines’ display of its photos in image search results.

Today, Judge A. Howard Matz of the U.S. District Court of the Central District of California said Perfect 10 is likely to succeed in proving that Google directly infringes its copyright by creating and displaying thumbnail copies of its photographs.

Perfect 10’s copyright infringement case may take years to wend its way through the courts. But a victory could hamstring image search, along with video and audio search services.

The judge said, however, that Perfect 10 was unlikely to succeed in proving that Google can be held liable for aiding copyright infringement by leading searchers to infringing sites.

Matz ordered Google and Amazon to work with Perfect 10 to come up with a preliminary injunction that balances the rights of copyright holders with the value of helping people find information.

They have until March 8 to propose suitable language.

Perfect 10 publishes a print magazine and a subscription-based Web site featuring photographs of nude women. Many of the models are under exclusive contract to the company. All images are copyrighted, and Perfect 10 charges $25.50 a month for Web access. Since early 2005, it’s also sold around 6,000 images per month for download to cell phones in the United Kingdom.

Perfect 10 sued Google for copyright infringement in November 2004. Perfect 10 CEO Norm Zada also sued in July 2005, saying Amazon’s A9 image search also violates his copyright. The two suits have been consolidated.

In August 2005, Zada asked U.S. District Court in Los Angeles to order Google to stop showing thumbnails of images of Perfect 10 models in its image search results, and also to stop linking to third-party Web sites that host pirated full-sized images.

Zada wanted a preliminary injunction that would stop the search engines from displaying his images while the trial proceeded. Courts issue such injunctions in cases where it seems likely the plaintiff will win.

The judge will eventually decide two questions: whether a search engine infringes copyrighted images when it displays them as thumbnails in image search results; and whether it displays copyrighted images served by another Web site via in-line linking.

In his order, Matz agreed with Perfect 10’s thumbnail complaints, but disagreed about linking. He wrote, “The principal two-part issue in this case arises out of the increasingly recurring conflict between intellectual property rights on the one hand and the dazzling capacity of Internet technology to assemble, organize, store, access and display intellectual property ‘content’ on the other.”

“We’re very happy that the judge agreed with our position on direct infringement on image search,” said Perfect 10 General Counsel Daniel Cooper. He added that the judge left several openings for his company to provide more proof of how linking infringes.

In an e-mailed statement, Google litigation counsel Michael Kwun said, “While we’re disappointed with portions of the ruling, we are pleased with Judge Matz’s favorable ruling on linking and other aspects of Google Image Search. We anticipate that any preliminary injunction will have no effect on the vast majority of image searches, and will affect only searches related to Perfect 10.”

The companies are engaged in discovery hearings this week, and Cooper hoped the court would order Google to produce key documents. “We’ve been unable to secure all the evidence we need,” he said.

Zada has two issues with image search services. First, he said, in many cases the thumbnails, which can be enlarged, satisfy the searcher’s desire without the need to click through to a for-pay site. Second, most of the results for searches on his company name or the names of the models he has under contract lead not to Perfect 10 sites, but to sites that have pirated his images.

The complaint argued that thumbnails themselves have value, because they can be licensed to mobile network operators or mobile content providers who then sell them for downloads to end users.

The judge agreed that Google’s thumbnail images are essentially the same size and of the same quality as the reduced-size images that P10 licenses for mobile downloads.

Finally, the suit claimed that Google should be held liable for helping searchers find sites that display stolen Perfect 10 images because, in many cases, those sites also show Google AdSense contextual ads. “Google not only copies and displays Perfect 10 images itself,” the request for the injunction read, “but also links them to Infringing Sites with which Google has partnered and from which Google receives revenue through its AdSense advertising program.”

Google contends that it only indexes the Web and can’t control what Web publishers do. It also has a policy of prohibiting AdSense ads on third-party sites that contain infringing material.

But the judge said that Google hadn’t presented any information about whether the “purported” policy was enforced, nor had it provided examples of AdSense partners who were terminated because of violations. But Perfect 10 submitted screenshots of Web sites that showed infringing content alongside AdSense ads.

Google’s defense was that copying and storing images on its servers to deliver as search results falls under fair use guidelines.

One question the court will decide is what constitutes “display” of an image. Google contends that in the Web context, display refers to the act of transmitting the bits that make up an image over the Internet; Perfect 10 contends that incorporating a thumbnail of the image into the search results page constitutes display.

Matz didn’t buy Perfect 10’s argument that search engines’ practice of linking to infringing content or showing the infringing content within frames below a search result constituted direct infringement on their part.

However, the judge agreed that the display of thumbnails did infringe. And, because the search engines show ads against search results, he found the use of thumbnails to be commercial in nature. One of the tenets of fair use is that the usage not be commercial.

He said it would be up to Perfect 10 to overcome Google’s and A9’s fair use defense.

Google’s Kwun said the company expects to appeal any injunction.

The suit mirrors issues in copyright infringement complaints filed by publishing groups and Agence France Presse.

In September, the Authors Guild sued Google for copying books under copyright without permission. Google argues that copying to its index and displaying only snippets in search results is fair use. In October, the American Association of Publishers followed suit.

News agency Agence France Presse filed suit in March 2005, saying that the display of its headlines, story leads and thumbnails of news photos by Google News offers for free the most important parts of its content.

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