Outside the Beltway

Google Thumbnails of Porn Site Images Not Fair Use

James Joyner · Thursday, February 23, 2006 · 2 comments

A federal trial judge has ruled that Google may not create thumbnails of other sites’ images under “fair use”.

The ‘natural model’ site Perfect 10 has won its legal battle against Google over the search engine’s use of thumbnail images from the site. A judge in California has ruled that Google infringed Perfect 10’s copyright on the pictures by taking copies and storing them on its own servers. Perfect 10 had claimed that Google was damaging its business by freely distributing the pictures it was trying to sell. Perfect 10 publishes a magazine that sells for $7.99 per issue and at the subscription-based perfect10.com web site costing $25.50 per month. In its defence, Google had claimed that displaying thumbnail versions of the images constituted ‘fair use’.

Perfect 10 had argued that the thumbnails damaged a portion of its business that offers images as wallpaper on mobile phones. Its lawyers pointed to a deal with British company Fonestarz Media which has sold 6,000 images from the Perfect 10 library.
It also claimed that Google had made money out of its AdSense program by allowing other sites to steal the images, reproduce them and then run Google ads alongside. It had also claimed that Google had helped other copyright infringers by making it easier for them to find and download the pictures and cited the Supreme Court Grokster ruling as a precedent.

In a partial victory for Google, U.S. District Court Judge A. Howard Matz ruled that it was perfectly legal for the search engine to link to the original version of the pictures. Nevertheless, the ruling could make the Google Images area of the search engine unusable if other companies use the Perfect 10 as a precedent and claim copyright infringement.

Google Image Search is a very useful feature and it would be a shame to see it taken away because a few publishers object.

From the perspective of a content provider, I often get traffic to the site from people who find pictures I’ve posted via Google and then click through. Indeed, one would think Perfect 10 would benefit from the traffic as well, as its customer base is unlikely to be satiated by tiny images.

Their secondary argument, however, is quite likely true. There is an ever-increasing number of blogs and other sites that post pictures of celebrities. Those sites get massive traffic, as a look at the BlogAds order page will show. Unlike traditional blogs, those sites almost never link back to their original sources. So, anything that makes it easier to find people’s content makes it easier to steal it.