Perfect 10 v Amazon Appeal Decision Handed Down

On May 16, 2007, the US Court of Appeals for the 9th Circuit (Court) handed down its decision in Perfect 10 v Amazon et al and related actions. Perfect 10 Inc (Perfect 10) had sued both Google Inc (Google) and Amazon.com Inc (Amazon) for copyright infringement by allegedly facilitating access to infringing photographic images. Google was sued because Perfect 10's protected works were displayed as thumbnails in Google search results, whereas Amazon was sued because its own search engine outsourced its queries to Google. At immedia te issue were rulings by the District Court for the Central District of California (District Court) regarding preliminary injunctions. In lengthy and complex reasons, the Court affirmed in part, reversed in part, and remanded to the District Court portions of its judgment. The Court affirmed the District Court's use of the "server test" in holding that storing and displaying thumbnail sized images of plaintiff's copyrighted works established a prima facie violation of plaintiff's display right under the US Copyright Act. However, the Court went on to rule that Google's thumbnail index was "transformative", created public benefit, and was likely at trial to qualify as a fair use exemption. Accordingly, the court reversed the preliminary injunction against Google's use of thumbnails. The Court then turned to whether Google could be secondarily liable for the display of full-size images by third parties, deciding that Google could be held contributorily liable if it had knowledge that infringing Perfect 10 images were available using its search engine and did nothing to prevent it. The factual issues involved were remanded to the District Court for decision. The high number of amicus curiae briefs filed before the Court (23 in total, representing a wide range of public interest groups and media industry lobby associations) indicates how closely watched was this case, which is not yet resolved on the merits. For the full reason for judgment (2007 WL 1428632), see: http://www.thelen.com/tlu/Perfect10VAmazon.pdf. For an industry sector commentary, visit: http://tinyurl.com/3dbej6 Summary by: Oren Weichenberg