US Appeal Court to Consider Internet Copyright Infringement Issues in deep-linking case

September 2006


Article by Tom Feather, Deeth Williams Wall LLP

An appeal pending before the US Court of Appeals for the Ninth Circuit (Perfect 10 Inc v GoogleInc) will address important Internet copyright issues including deep-linking of web sites, framing of third party content, and use of copyrighted content for searching. The image search function of Google Inc (Google) provides direct links to images, the copyright to some of which is held by Perfect 10 Inc (Perfect 10).  Such images are often made available on web sites by third parties without the consent of Perfect 10.  Google also caches and displays reduced-resolution versions of those images (thumbnails) to make searching easier.  On user request, a full-resolution image is retrieved directly by the user’s browser from the host web site and is displayed in a frame within the Google search page.  Perfect 10, which provides these images by paid subscription via the Internet, sued Google for direct copyright infringement for use of thumbnails, links and framing of Perfect 10’s images.  It also claimed secondary infringement for inducing users to infringe, as well as for providing an audience to infringing sites and benefiting via its “AdSense” program.

In a motion for a preliminary injunction in February, a US District Court in California found that the claims of infringement by linking and framing were likely to fail.  The Court also rejected the argument that providing a generic search function could be considered as inducing sites to make infringing images available and rejected inducement via the AdSense program for lack of evidence. Further, it rejected an argument that Google was inducing infringement by users because of a lack of evidence that users actually infringed.  The Court noted that local browser caching of images by users probably constituted fair use, as supported by a recent case, Field vGoogleInc (412 F Supp 2d 1106).

However, a preliminary injunction was granted on the basis that it was likely that Perfect 10 would be able to prove Google infringed its copyright on the basis of the use of reduced resolution thumbnail images.  The Court found, despite “enormous public benefit that search engines such as Google provide” and its reluctance to impede the advance of Internet technology, that Google’s commercial use of the material was not fair use. The Electronic Frontier Foundation (EFF) has filed an amicus brief supporting Google, as has NetCoalition, a group including ISPs and the Consumer Electronic Association.  Recording and motion picture industry groups have submitted briefs supporting Perfect 10.  While Perfect 10 and its supporters are not pursuing the argument that browser caching constitutes infringement, they are focusing on the argument that an inference of infringement by users should have been drawn. The relevance of the case in Canada may be limited based on the current version of the Canadian Copyright Act; however, it could become more relevant if Canada moves towards a fair use exemption, as some have recommended, including the Coalition of Arts Professionals and Canadian Music Creators Coalition.

For the EFF and other briefs and the text of the District Court order, see:

For the Field v Google decision, see:

And see Music Law Updates Archive November 2005 (Perfect 10 v Google) and March 2006 (Field v Google) and see Kelly v Arriba , 280 F 3d 934 (9th Cir 2002).


Taken from E-TIPS Vol 5 No 3 Published by Deeth Williams Wall LLP and edited by Richard

Potter QC . To review past issues of the E-TIPS ® newsletter, visit: © 2006 Deeth Williams Wall

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