Sat, Sep. 23, 2017

No Copyright Infringement in Image Search

LB - Washington.   Displaying third-party thumbnail-size images on a website does not result in a copyright infringement when a search engine displays them, the Ger­man Su­pre­me Court for Civil Matters in Karlsruhe decided in Perfect 10 v. AOL Deutsch­land on September 21, 2017.

The defendant offered a free image research feature and linked its website to the Go­og­le search engine. Visitors would click on the defendant's URL and use the search in­put field. Google had found some images on freely accessible websites and displayed them as thumbnails, and the defendant AOL showed these on its site. Some images found by Google had been downloaded illegally by plaintiff's clients who uploaded them to dif­fe­rent unrestricted sites.

The plaintiff alleged that the defendant infringed its copyright by displaying images it found on such sites and argued that §15(2) of the German Copyright Act af­fords the co­py­right holder an exclusive right to reproduce images in public. Whether or not the works were freely accessible should not be determinative.

The court rejected these arguments, explaining that §15(2) of the German Copyright Act implements Art. 3(1) of the European Guideline 2001/29/EG. The European Court of Justice had decided that a pub­lic reproduction assumes knowledge or that a pub­li­sher must have known of an illegal publication. The German court based its de­ci­si­on on freedom of speech grounds, informational concepts and the need for reliable links as important elements of the exchange of information on the internet. These con­si­de­ra­ti­ons apply also to links which provide access to search engines. The plaintiff had fai­led to prove that the defendant had to know of the illegality. The standard refutab­le pre­sump­tion of scienter would not apply to search engines and to links to them. Search engines are too important for the functionality of the internet. Their providers cannot be ex­pec­ted to examine the legality of all results within an automated search process, the court reasoned.

The decision may affect a new Google feature. Since 2017, it displays not only thumb­nails but also full-sizes images. The Court issued a press release, and the full decision should follow within a few months.

The German American Law Journal previously reported about similar decisions and le­gal issues in the United States, see Kochinke, Texte aus Webseite schürfen: Fair Use?, Mit­telstädt Verstößt die Bildersuche von Google im Internet gegen Urheber­recht?, and Kochinke Google liefert Kode, nicht Bilder.

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