| Perfect 10, Inc. v. Amazon.com, Inc. | |
|---|---|
| Court | United States Court of Appeals for the Ninth Circuit |
| Full case name | Perfect 10, Inc. v. Amazon.com, Inc. and A9.com Inc. and Google Inc. |
| Date decided | May 16, 2007 |
| Citation(s) | 508 F.3d 1146 |
| Judge(s) sitting | Cynthia Holcomb Hall, Michael Daly Hawkins, and Sandra S. Ikuta |
Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) was a case in the United States Court of Appeals for the Ninth Circuit involving Perfect 10, Inc., Amazon.com, Inc. and Google, Inc. The court held that Google's framing and hyperlinking as part of an image search engine constituted a fair use of Perfect 10's images because the use was highly transformative, overturning most of the district court's decision.[1]
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Perfect 10 was an adult entertainment magazine that provided a subscription-only website. A number of independent, third-party web site publishers placed images obtained from Perfect 10's subscription-only area on their own websites, violating Perfect 10's terms of service and copyright. Google crawls, indexes, and caches websites on their internal servers so they can be accessed quickly. The sites crawled included many of these third-party sites containing infringing images. As part of their image search service, Google also provides thumbnail copies of the images that are being searched for so the user may see them before accessing the website. Furthermore, when a user selects an image from a Google search, a new page is accessed that includes the original website as well as a frame that contains information about the image and the thumbnail version of the image.[2]
Perfect 10 believed the linking constituted instances of secondary copyright infringement, and the caching and thumbnails constituted direct infringement. Acting on this, Perfect 10 sent Google infringement notifications for nearly 4 years, eventually filing suit against both Google and Amazon for similar activities. Perfect 10 requested injunctions against Google and Amazon from linking to websites displaying Perfect 10's images and, in the case of Google, displaying the thumbnail images. Shown at right is Exhibit A from the district court's opinion in the case, showing some of the particular objections Perfect 10 had to Google's use of their images.[1][3]
After filing suit in November 2004 in the United States District Court for the Central District of California, the district court granted partial injunctive relief in favor of Perfect 10. Specifically, it ruled that Google's thumbnail images were likely to be found to be infringing while the hyperlinks to infringing sites were not likely to be found infringing in and of themselves. Google appealed the injunction against them, and Perfect 10 appealed the decision on the hyperlinks.[1][3]
On appeal, the Ninth Circuit upheld the district court's decision that the hyperlinks were not infringing on Perfect 10's copyright. It agreed with the district court's assessment that infringing websites existed before Google and would continue to exist without Google, thus it was not a contributory infringer. Furthermore, Google had no control over infringing sites and could not shut them down, so any profits it may or may not extract from users visiting those sites did not constitute vicarious infringement.
The court also agreed that including an inline link is not the same as hosting the material yourself. So in the case of framing, while it may "appear" that Google was hosting infringing material, it was only hosting a link to the material which the Browser interpreted should appear in a certain way.[2]
The Ninth Circuit did, however, overturn the district court's decision that Google's thumbnails were infringing. Google's argument, which was upheld by the court, was a fair use defense. The appellate court ruled that Google's use of thumbnails was fair use, mainly because they were "highly transformative." Specifically, the court ruled that Google transformed the images from a use of entertainment and artistic expression to one of retrieving information, citing the similar case, Kelly v. Arriba Soft Corporation. The court reached this conclusion despite the fact that Perfect 10 was attempting to market thumbnail images for cell phones, with the court quipping that the "potential harm to Perfect 10's market remains hypothetical."[3]
The court pointed out that Google made available to the public the new and highly beneficial function of "improving access to [pictorial] information on the Internet."[1][3] This had the effect of recognizing that, "search engine technology provides an astoundingly valuable public benefit, which should not be jeopardized just because it might be used in a way that could affect somebody's sales." [4]
Google also raised a Digital Millennium Copyright Act (DMCA) safe harbor defense in respect to the issue of hyperlinks, which Perfect 10 contested. However, the court did not reach an opinion on the matter as it found that Perfect 10 was unlikely to succeed on the matters of contributory and vicarious liability because of the other arguments.[1]
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