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By Edward F. Maluf and Sheila M. Pierce

One of many functions performed by Google’s search engine is the delivery of thumb-nail sized images rather than text in response to a query. Perfect 10, an adult entertainment publisher, sued Google and Amazon.com, Inc. for copyright infringement, alleging that Google retrieved Perfect 10’s copyrighted images and stored and/or displayed them on Google’s server. Perfect 10 objected to Google’s practice because Perfect 10 was exploiting its copyrighted images by selling them for download to mobile phones, where the images appeared in a thumbnail-sized format identical or nearly identical to the version appearing after a search on the Google service. Perfect 10 filed a motion seeking injunctive relief, asking the court to order Google and Amazon to stop displaying thumbnail images of Perfect 10 models in its image search results and to stop users from linking directly to third-party sites that host and serve infringing full-size images. The District Court upheld Perfect 10s claim for copyright infringement because Google stored Perfect 10’s images on its own servers. However the District Court did though it unlikely that Google would be found either contributorily or vicariously liable for any use of Perfect 10’s copyrighted images. Google unsurprisingly appealed using the doctrine of fair use to support its search function and the Ninth Circuit appeared to reassert its holding in Kelly v. Arriba and found that the lower court had erred on certain issues. Specifically, the District Court erred in concluding that Perfect 10 would meet its burden of demonstrating the likelihood of overcoming Google’s fair use defense and applied the wrong test to determine whether Google could be held liable for contributory infringement. Read more athttp://www.mondaq.com/news.asp?e=1&a=49192