February 22, 2006

Google infringes on nude photo site: court papers

By Robert MacMillan

NEW YORK (Reuters) - Google Inc.'s image search service
violates the copyrights of adult magazine and Web publisher
Perfect 10 Inc. by displaying thumbnail-sized photographs, a
federal judge has ruled.

However, Google is likely not responsible for displaying
the underlying images from Perfect 10's Web site, a judge in
the U.S. District Court for the Central District of California
said in a ruling last week that was made public on Tuesday.

The order could effectively bar Google from featuring
thumbnail pictures -- small versions of photos that are linked
to a bigger version of the same picture -- but not limit Google
from linking to actual photos which exist on other Web sites.

The judge accepted that people who click on full-size
images from Perfect 10 are not viewing images that Google has
stored or served up on its computers but links to other sites.

Google argued that its thumbnails constitute fair use.

U.S. District Court Judge A. Howard Matz ordered Google and
Perfect 10 to develop a preliminary injunction that reflects
both factors. His ruling was issued on Friday and released to
the public on Tuesday.

"The court now concludes that Google's creation and display
of 'thumbnails' likely do directly infringe P10's (Perfect
10's) copyrights," he wrote in the ruling.

Google expects to appeal an injunction if the judge issues
one, the Mountain View, California-based company's 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," Kwun said.

Perfect 10 plans to appear at a court hearing on Wednesday
to seek additional evidence to support its claims against
Google, said company attorney Daniel Cooper.

"Everything that we tried to sell for a living, they were
displaying for free," Cooper said.

Cooper said Perfect 10 is considering whether to appeal the
judge's decision on Google and third-party sites.

Perfect 10 first sued Google and Amazon.com Inc., which
runs the A9 Internet search engine and uses Google technology,
in 2004. Matz said he would issue a separate order for Amazon.

In his ruling, the judge notes the value of Google image
searches in simplifying and expediting access to information,
but agrees that Google's use of thumbnails makes it a
commercial consumer of Perfect 10's images. In particular, the
Google-created thumbnails hurt Perfect 10's efforts to sell
small images to mobile phone users, the judge ruled.

Beverly Hills, California-based Perfect 10 publishes photos
of nude women in a magazine that sells for $7.99 per issue and
at a subscription-based Web site that costs $25.50 per month.

(Additional reporting by Eric Auchard in San Francisco)