Google loses in court over nude photo links

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By Elise Ackerman
Mercury News

A Los Angeles federal judge has ruled that Google's image search violates an adult Web site's copyrights by displaying ``thumbnail'' versions of its photos.

In a ruling released Tuesday, U.S. District Judge A. Howard Matz found Google directly infringed on copyrights held by Perfect 10, a Beverly Hills publisher. He said the free availability of the photos on Google could harm Perfect 10's efforts to sell thumbnail, or small, versions of its photos as downloads to cell phones.

``The court reaches this conclusion despite the enormous public benefit that search engines such as Google provide,'' Matz wrote in a 47-page order filed Friday.

If upheld, the judge's ruling could affect Yahoo and other Internet companies whose image searches display thumbnails of copyrighted pictures.

The judge ordered Google and Perfect 10 to submit by March 8 wording for a preliminary injunction barring the use of the thumbnail images.

Perfect 10 publishes the adult magazine ``Perfect 10'' and operates a subscription Web site that claims to feature ``the world's most beautiful natural women.''

Google's image search displays thumbnail images when people submit a query on a particular subject. The tiny pictures are stored on Google's servers but when a person clicks on the image, he is taken to the original source of the full-sized image.

Google's creation and display of the Perfect 10 thumbnail images ``likely do not fall within the fair use exemption,'' Matz wrote, citing a legal standard that allows for limited use of copyrighted works, such as for criticism, comment, news reporting or teaching.

The Mountain View search company has long faced complaints for linking to copyrighted material, though some of the criticism has been blunted as publishers have found ways to profit from the traffic Google sends to their sites.

The 9th Circuit U.S. Court of Appeals ruled in an earlier case that a search engine could display thumbnail reproductions of scenes of the American West because its purpose was improving access to information on the Internet.

But Matz noted that Perfect 10's case was different in that the publisher had signed a licensing agreement with Fonestarz Media to sell its copyrighted images for download to cell phones. Meanwhile, those images were available for free on Google, Matz noted.

Google's legal counsel, Michael Kwun, said in a statement that the company was disappointed with ``portions of the preliminary injunction'' but that it will not affect the vast majority of image searches.

The company said it will probably appeal the injunction.

The judge rejected Perfect 10's request to bar Google from linking to third-party Web sites that contain Perfect 10 images.

``We feel when all the evidence comes out, we are confident that we are ultimately going to prevail on that as well,'' said Daniel Cooper, general counsel for Perfect 10.

The publisher has asked the judge to order Google to disclose the revenue it receives from third-party porn sites that participate in Google's AdSense advertising program.

Laurence Pulgram, a partner at Fenwick & West who has defended Napster, SONICblue and ReplayTV, said Friday's injunction was good news for Internet users in general and ``limited bad news'' for Google.

He noted that a ruling against links to illegally posted content could have opened up untold numbers of Web site owners to liability.

Perfect 10 filed suit against Google and Amazon.com in November 2004 for allegedly displaying its copyrighted images. It also alleges that Google links to Web sites that display the images and published user name and password combinations that allow access to perfect10.com.

Matz noted that Amazon licenses from Google much of the technology that is the subject of the suits. The judge said he would issue a separate ruling addressing the request for an order against Amazon.