Perfect

10, INC. V. AMAZON.COM, INC. 487 F.3d 701 (9th Cir. 2007)

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Nature of the Case

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Facts

The Google (D) search engine that provides responses in the form of images is called 'Google Image Search.' Google Image Search identifies text in its database responsive to the query and then communicates to users the images associated with the relevant text. Google's (D) software cannot recognize and index the images themselves. Google Image Search provides search results as a webpage of small images called 'thumbnails,' which are stored in Google's (D) servers. The thumbnail images are reduced, lower-resolution versions of full-sized images stored on third-party computers. When a user clicks on a thumbnail image, the user's browser program interprets HTML instructions on Google's (D) webpage. These instructions direct the user's browser to cause a rectangular area (a 'window') to appear on the user's computer screen. The window has two separate areas of information. The browser fills the top section of the screen with information from the Google (D) webpage, including the thumbnail image and text. The HTML instructions also give the user's browser the address of the website publisher's computer that stores the full-size version of the thumbnail. The user's browser connects to the website publisher's computer, downloads the full-size image, and makes the image appear at the bottom of the window on the user's screen. Google (D) does not store the images that fill this lower part of the window and does not communicate the images to the user. Google (D) provides HTML instructions directing a user's browser to access a third-party website. The user's window appears to be filled with a single integrated presentation of the full-size image, but it is actually an image from a third-party website framed by information from Google's (D) website. This process is called 'in-line linking.' Google (D) stores webpage content in its cache. Google's (D) cache contains the text of the webpage as it appeared at the time Google (D) indexed the page, but does not store images from the webpage. Google's (D) cache version of the webpage is not automatically updated when the webpage is revised by its owner. If the webpage owner updates its webpage to remove the HTML instructions for finding an infringing image, a browser communicating directly with the webpage would not be able to access that image. However, Google's (D) cache copy of the webpage would still have the old HTML instructions for the infringing image and be able to access the image. Google (D) also generates revenues through an agreement with Amazon.com (D) that allowed Amazon.com (D) to in-line link to Google's (D) search results. Amazon.com (D) gave its users the impression that Amazon.com (D) was providing search results, but Google (D) communicated the search results directly to Amazon.com's (D) users. P markets and sells copyrighted images of nude models. P operates a subscription website on the Internet. Subscribers pay a monthly fee to view Perfect 10 images in a 'members' area' of the site. Google (D) does not include these password-protected images from the members' area in Google's (D) index or database. P has also licensed Fonestar Media Limited to sell and distribute P's reduced-size copyrighted images for download and use on cell phones. Crooked website publishers republish P's images on the Internet without authorization. Once this occurs, Google's (D) search engine may automatically index the webpages containing these images and provide thumbnail versions of images in response to user inquiries. If a user accesses the thumbnails, they would get the pirated third party picture. P began notifying Google (D) that its thumbnail images and in-line linking to the full-size images infringed P's copyright. On November 19, 2004, P filed an action against Google (D) that included copyright infringement claims. P sued Amazon.com (D) on June 29, 2005. P believed the linking constituted instances of secondary copyright infringement, and the caching and thumbnails constituted direct infringement. Google (D) argued that the use of the works in such thumbnails was protected under the copyright doctrine of fair use. P sought a preliminary injunction to prevent Ds from 'copying, reproducing, distributing, publicly displaying, adapting or otherwise infringing, or contributing to the infringement' of P's photographs; linking to websites that provide full-size infringing versions of P's photographs; and infringing P's username/password combinations.' The district court issued orders granting in part and denying in part the preliminary injunction against Google (D) and denying the preliminary injunction against Amazon.com. P and Google (D) cross-appealed the partial grant and partial denial of the preliminary injunction motion, and P appealed the denial of the preliminary injunction against Amazon.com (D). On June 15, 2006, the district court temporarily stayed the preliminary injunction.