Holding

In this appeal brought by both the copyright owner Perfect 10, Inc. and defendants which included internet search engine and internet retailer (Google, Inc. and Amazon.com, Inc.), the Court of Appeals ruled that the internet search engine operator's act of framing in-line linked full-size images of copyrighted photographs on its website did not constitute “display” of copies of such photographs, within the meaning of Copyright Act, as would amount to copyright infringement.

Detailed Summary

This action is a copyright infringement suit filed seeking to stop an internet search engine from facilitating access to infringing images. The plaintiff sued Google, Inc. for infringing its copyrighted photographs of nude models, among other claims. It also brought a similar action against Amazon.com and its subsidiary A9.com. The district court preliminarily enjoined Google from creating and publicly displaying thumbnail versions of the plaintiff’s images, but did not enjoin Google from linking to third-party websites that display infringing full-size versions of plaintiff’s images. Nor did the district court preliminarily enjoin Amazon.com from giving users access to information provided by Google.

The plaintiff and Google both appealed the district court’s order. The Court of Appeals observed that it had not previously addressed the question when a computer displays a copyrighted work for purposes of section 106(5), which was the primary issue in this case. Section 106(5) states that a copyright owner has the exclusive right “to display the copyrighted work publicly.” The Copyright Act explains that “display” means “to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process....” (17 U.S.C. § 101). Section 101 defines “copies” as “material objects, other than phono records, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Google does not, explained the court, display a copy of full-size infringing photographic images, for purposes of the Copyright Act, when Google frames in-line linked images that appear on a user’s computer screen. Because Google’s computers do not store the photographic images, Google does not have a copy of the images. In other words, the court added, Google does not have any “material objects in which a work is fixed and from which the work can be perceived, reproduced, or otherwise communicated” and thus cannot communicate a copy. Instead of communicating a copy of the image, “Google provides HTML (hyper text mark up language) instructions that direct a user’s browser to a website publisher’s computer that stores the full-size photographic image. Providing these HTML instructions is not equivalent to showing a copy,” according to the court. 

The plaintiff argued that Google violated its right to display full-size images because Google’s in-line linking meets the Copyright Act’s definition of “to perform or display a work ‘publicly’ ” under 17 U.S.C. § 101. This phrase means “to transmit or otherwise communicate a performance or display of the work to ... the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.”

But the court brushed aside this argument of the plaintiff, saying that Google’s activities do not meet this definition because Google transmits or communicates only an address which directs a user’s browser to the location where a copy of the full-size image is displayed. Google does not communicate a display of the work itself.

In sustaining the fair use defense invoked by the defendant, the court was guided by the case of Kelly v. Arriba Soft Corp. (336 F.3d 811) which considered substantially the same use of copyrighted photographic images as is at issue here.  In Kelly, a photographer brought a direct infringement claim against Arriba, the operator of an Internet search engine. The search engine provided thumbnail versions of the photographer’s images in response to search queries. Hence, applying the ruling in the Kelly case, the court held that the use of thumbnail images was a fair use primarily based on the transformative nature of a search engine and its benefit to the public.  The Court of Appeals therefore ordered the reversal of the order granting the writ of preliminary injunction against Google’s use of thumbnail versions of the plaintiff’s images.