U.S. District Judge A. Howard Matz ruled Friday that Perfect 10, an adult-oriented Web site featuring "beautiful natural women" in the nude, has shown that Google image search probably infringes copyright law "by creating and displaying thumbnail copies of its photographs."
The Los Angeles judge said he would award Perfect 10 a preliminary injunction against Google, and gave lawyers for both sides until March 8 to propose the injunction's wording.
Google said on Tuesday that it plans to appeal the injunction, and predicted it will have no effect on the "vast majority" of its image searches.
Perfect 10 sued Google for copyright infringement in November 2004, and then in August 2005,to halt Google from allegedly copying, displaying and distributing more than 3,000 Perfect 10 photos.
The photo publisher says it's plagued by copyright pirates who pay its $25.50 monthly fee and then reproduce its copyright images on sites that are indexed by Google and incorporated in its image search feature.
Google: Nude photos aren't art
In an unusual position for an Internet firm with aspirations of being a media hub, Google argues that Perfect 10 (P10)'s high-quality nude photographs are not creative. Here's an excerpt from Judge A. Howard Matz's opinion rejecting that claim:
Google argues that P10's works are not creative because P10 "emphasizes the objects of the photographs (nude women) and [P10] assumes that persons seeking Perfect 10's photos are searching for the models and for sexual gratification" Google contends this "implies a factual nature of the photographs."
The Court rejects this argument. The P10 photographs consistently reflect professional, skillful, and sometimes tasteful artistry. That they are of scantily-clad or nude women is of no consequence; such images have been popular subjects for artists since before the time of "Venus de Milo."
In a 48-page opinion (click here for PDF), Matz agreed that Google provides "an enormous public benefit." But, he said, "existing judicial precedents do not allow such considerations to trump" copyright law.
If Google offered only its traditional search feature, optimized for computers with desktop-size screens, the outcome might have been different. But the judge noted two differences: First, the search company apparently receives AdSense advertising revenue from some of the photo-pirating sites, and second, Google's image search has an option for mobile phones.
Google Mobile's image search option permits handheld devices to perform the identical search of more than 2 billion images, then save the scaled-down images for future reference. Those scaled-down images are similar to what Perfect 10 offers as a subscription service through U.K.-based Fonestarz and could, the court ruled, harm the market for Perfect 10's subscription-based image sales.
"Google's thumbnail images are essentially the same size and of the same quality as the reduced-size images that (Perfect 10) licenses to Fonestarz," Matz wrote.
In a telephone interview with CNET News.com on Tuesday, Daniel Cooper, Perfect 10's general counsel, said, "Certainly the court found those two factors to be of interest. Overall we feel very good about it."
Google did win, however, on one key point. Matz said that the "framing" feature of the company's image search, which displays a thumbnail of the image above a rendering of the original page, did not directly infringe Perfect 10's copyright.
"While we're disappointed with portions of the ruling, we are pleased with Judge Matz's favorable ruling on linking and other aspects of Google Image Search," Google litigation counsel Michael Kwun said in a statement. "We anticipate that any preliminary injunction will have no effect on the vast majority of image searches, and will affect only searches related to Perfect 10."