If you go to http://www.ditto.com/ and type in "Napoleon Bonaparte" the video search engine will pull up twelve "thumbnail" images of the late, great Emperor. "Thumbnails" are small, low resolution images that since the Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003) have been assumed by courts to be commercially valueless. An example is found at left.
Enter "Perfect 10" a producer of photographs of naturally-beautiful naked women. Perfect 10 sued Google because Google operates a video search engine that gathers thumbnails in response to search queries.
Perfect 10 argued that it had created a market for thumbnails: selling thumbnails to users of cell phones who wanted to use naturally beautiful naked women as wallpaper.
Perfect 10 convinced a California District Court judge to enjoin Google from using its video search engine pending the outcome of the trial. The court found that Google's use of the thumbnails was probably copyright infringement and not "fair use" because of Perfect 10's new commercial use for the hitherto worthless thumbnails.
On May 16, 2007, in Perfect 10, Inc. v. Amazon.com, Inc., ---F.3d---, 2007 WL 1428632 (9th Cir. 2007), the Ninth Circuit reversed. The decision analyzed very carefully why gathering thumbnails, which are mere URL instructions, is really not copying (doesn't violate "display" right and doesn't violate "distribution" right of copyright owner), and how the video search engine's use of the original copyrighted works is "highly" transformative. A careful look at Napoleon's face above might lead the average viewer to agree.
Folks who obssess over Napster, Grokster and all of that will have a field day reading this decision which then covers secondary liability (contributory and vicarious infringement) (Google raised the argument that its video search engine had a substantial non-infringing use). Essentially Perfect 10's argument was that people other than Google were posting Perfect 10 images to their websites without permission and that Google's search engine was then re-copying and re-distributing these infringing works. The Ninth Circuit found that "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."
N.B. - The Ninth Circuit found that Perfect 10 had not really shown that their market for thumbnails was being harmed by Google or that Google users were using thumbnails to create their own wallpaper. When a plaintiff who can show these facts comes back to court in a few years, we may have a new rule of thumb.
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