Nude-photo site wins injunction against Google

Judge says Google image search violates copyright of Perfect 10, which sells photos of nude women. Images: Searching for perfection

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
5 min read
A federal judge has ruled that portions of Google's popular image search feature, which displays small thumbnail versions of images found on other Web sites, likely violate U.S. copyright law.

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, asked for an injunction 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."

Google is facing a growing number of lawsuits that could imperil its lucrative business model, which relies in part on the ability to make "fair use" of copyright works and sell advertisements linked to trademarked keywords.

The Authors Guild sued Google in September, claiming that the Google Print Library Project violated copyright law. The Agence France Press news agency also sued Google for allegedly using photos and headlines in violation of the law.

Google won a case against Geico after a judge ruled that selling ads linked to trademarks was legal, but lost one in France. A federal judge in Nevada ruled last month (click here for PDF) that Google's cache feature is "fair use" of even copyright works.

The Perfect 10 lawsuit has received a high level of public attention, not least because of the 2003 Arriba Soft decision from the 9th Circuit Court of Appeals. In that ruling, the court sided with an image search engine over a photographer who claimed the automatically generated thumbnails amounted to copyright infringement.

This case is different, Judge Matz ruled, in part because of a financial relationship with AdSense. Although Google claims its policy prohibits such Web pages from being included in its image search, the judge said "Google has not presented any information regarding the extent to which this purported policy is enforced."

A November 2004 post on Overlawyered.com, which boasts of chronicling the "high cost of our legal system," quips that Perfect 10 is "an unsuccessful California pornography business that has branched out into the litigation business."

The Electronic Frontier Foundation, a digital-rights group in San Francisco, filed a friend-of-the-court brief (click here for PDF) siding with Google.

It argues that creating thumbnails is "fair use" under copyright law, "both because it promotes the progress of digital innovation and because it enhances public access to knowledge and information online."

Friday's decision is only a preliminary one, and the next step likely will be an appeal before the 9th Circuit. Unless the appeals court dismisses the case, a trial would have to be scheduled before a final decision--including the question of damages for copyright infringement--would be reached.

Amazon.com, which licenses technology from Google, also has been named as a defendant. The two cases have been consolidated, and Judge Matz said he would publish a second order dealing with Amazon's potential liability.