German courts recently ruled against Google with regard to two cases involving indexing thumbnails of copyrighted images causing them to display with search results. The infringement cases were brought by a photographer and a comic artist. The Regional Court of Hamburg said that “By using photos in thumbnails, no new work is created” since the thumbnails were created by sizing down the images and displaying them in lower resolutions. The court concluded that this was done without permission and thus constituted a copyright infringement. Google has announced that it intends to appeal these two German court rulings.
Google’s Track Record
Google is certainly no stranger to copyright infringement battles. In February 2007, a case was decided against Google for publishing links to articles from among the 17 Belgium newspapers represented by Copiepresse, without permission. Although it was stated that reproduction of headlines and short extracts violate the law on copyright and author’s rights, the court appeared to uphold Google’s existing procedure. The ruling says that the onus is on copyright holders to contact Google and notify them of infringement. In that case, Google is required to remove material within 24 hours or pay a monetary daily fine.
Google’s copyright fights are not restricted to European courts. Another significant copyright infringement case was brought about against Google in the US by Perfect 10, an adult magazine. Here Google was accused on two accounts: “by displaying thumbnails of its images in its search results and by framing third-party web sites that contain full-size copies of its images when the user clicks on a thumbnail”. The concern was that this interfered with the magazine’s cell-phone thumbnail offer. The appeal, however, favoured Google on the legal issue of creation of thumbnails and determined that it fell within the exceptions granted by US copyright law for transformative use.
Noticeably, there is a huge discrepancy in the US and German copyright laws on displaying thumbnail images as a search result. Not only do I fail to see any disadvantage to such the practise of displaying thumbnail images in searches, I also fail to see the policy reasons for rendering this practise illegal. Instead, it would have been a good opportunity for the newspapers in the Belgian case and the artists in the current case to draw audiences and get publicity for their creative works. Upon carrying out a further search on the current policies adopted by Google’s Image Search, I came across this ‘Frequently Asked Questions’ section.
Are there any copyright restrictions associated with the images?
The images identified by the Google Image Search service may be protected by copyrights. Although you can locate and access the images through our service, we cannot grant you any rights to use them for any purpose other than viewing them on the web. Accordingly, if you would like to use any images you have found through our service, we advise you to contact the site owner to obtain the requisite permissions.
If I am the copyright holder of an image that I want removed from Image Search, what do I do?
If you’re the webmaster of the site from which the image was crawled, please follow these instructions. If you’re not the webmaster of the site from which the image was crawled, you should contact the webmaster of the page in question and ask them to follow these instructions. You may also contact us by following the instructions at http://www.google.com/images_dmca.html.
Web site owners can place a robots.txt file on its site to remove its copyrighted images from Image Search. Even if there are drawbacks attached to this practise, this appears to provide a good technical solution to the problem, without resorting to litigation.
One Response
It seems that the two courts have focused on different aspects of thumbnail image results from online searches. The U.S. decision focused on the use of the copyrighted images and determined that it was fair because the thumbnails were there to give internet surfers a method for searching through a variety of images quickly, which is a different purpose than that of the original images themselves. Due to such a transformation it may follow that it is reasonable to allow these thumbnail images to continue being generated, however, this is not the only purpose of the thumbnails.
The German court focused on the properties of the thumbnails themselves and not their primary purported use. If the purpose of the owner`s original images is essentially to generate revenue by simply being viewed on a particular website, then the publishing of a thumbnail can be said to somewhat supersede the owner`s purpose because there exists another underlying purpose of showing these thumbnails. This additional purpose is to ultimately allow Google to generate revenue for itself by virtue of simply letting users view these images in its searches on its website, which is quite similar to the method used by the owner of the original works. The more closely the thumbnails represent the original images, arguably the more likely Google is to benefit financially (if it is accepted that users prefer to view higher quality images), and the more likely the original work`s purpose is superseded. Therefore, the German court may have been right in focusing on the properties of the thumbnails to determine their degree of novelty as images when addressing the larger issue of infringement.
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