In a case likely to have repercussions for real estate search engines which display thumbnails and copyrighted material of other websites, a California Federal Court has ruled in favor of adult oriented website Perfect10.com in its lawsuit against Google for copyright infringement. The Court ruling supports Perfect 10’s argument that Google’s Image Index thumbnail display of its copyrighted photographs is illegal. The ruling was made public on Tuesday.
U.S. District Court Judge A. Howard Matz granted Perfect 10 a preliminary injunction and ordered Google to stop showing thumbnail images of the website’s copyrighted photos. The legal implication of the injunction is that Perfect 10 is “likely” to win its case against Google. Google plans to appeal the ruling, which takes effect March 8th.
The images are not stored on Google’s servers and Google links users to the Perfect 10 website. The Court ruled that while it is perfectly legal to link to the Perfect 10 website, the display of the thumbnail images was a violation of Perfect 10’s copyright in those photos. Judge Matz rejected Google’s “Fair Use” argument, which is the most common and useful defense to those using copyrighted materials for noncommercial, educational or other similar uses. Fair Use, however, is an affirmative defense, with the burden of proof on the defendant to prove its use was legal under the doctrine. The long standing doctrine involves the balancing of many factors, commercial detriment to the plaintiff or profit to the defendant being generally the weightiest factors.
Perfect 10 is not done stirring the legal waters of search. It has also taken aim at Amazon and its A9.com search engine.
Should the real estate search engines be worried?
Update (May 16, 2007): The US Ninth Circuit Court of Appeals (San Francisco) lifted the preliminary injunction against Google saying:
We conclude that Perfect 10 is unlikely to be able to overcome Google’s fair use defense and, accordingly, we vacate the preliminary injunction regarding Google’s use of thumbnail images.
We will keep you posted.
