Google wins (kind of) on nude photos

Does Google violate copyright protection when it displays small versions of images in its search results? Perfect 10 Inc., the Bev Hills-based publisher of naked women, claims that it does - and it took Google to court three years ago in a case that had some major ramifications for all content winding up on search engines. Well, the 9th U.S. Circuit Court of Appeals said that Google does not infringe on the copyrights of Perfect 10. But it's way more complicated than that. The three-judge panel said that the lower court erred by granting a preliminary injunction against Google and that the display of a thumbnail image could be considered "fair use" under copyright law. Now the question is whether Google violated copyrights by pointing people to sites that display unauthorized photos. Here's how the court put it:

"There is no dispute that Google substantially assists Web sites to distribute their infringing copies to a worldwide market and assists a worldwide audience of users to access infringing materials," the court said. "We cannot discount the effect of such a service on copyright owners, even though Google's assistance is available to all Web sites, not just infringing ones."

Here's the thing: Google does not store photographic images - it just gives HTML instructions that direct the browser to the images published on other Web sites. "Providing these HTML instructions is not equivalent to showing a copy," the 9th Circuit opinion stated. So while Google may facilitate a user's access, the assistance it provides does not constitute direct infringement of Perfect 10's display rights. However, Perfect 10 could try to prove that Google might have taken simple measures to prevent infringement and was therefore liable. All of which makes you wonder whether anything's really been settled. No clues on whether either side will appeal. The Recorder