Advanced Copyright Issues on the Internet - Fenwick & West LLP

court concluded that Google’s use of Perfect 10’s thumbnails was a fair use. Accordingly, thecourt vacated the preliminary injunction regarding Google’s use of thumbnail images. 321Contributory Infringement. Perfect 10 argued to the district court that Google wascontributing to the infringement of two direct infringers – third party web sites hosting andserving infringing copies of Perfect 10 photographs, and Google Image Search usersdownloading such images. The district court ruled as a preliminary matter that Perfect 10 couldnot base its contributory infringement claim on users’ actions, because Perfect 10 haddemonstrated only that users of Google search were capable of directly infringing bydownloading the images, but had not submitted sufficient evidence showing the extent to whichusers were in fact downloading Perfect 10’s images through Google Image Search. Thus, thecontributory infringement claim had to be based on knowledge and material contribution byGoogle to the infringing activities of third party web sites hosting Perfect 10’s images. 322With respect to the knowledge prong, the district court, citing the Supreme Court’sGrokster case, noted that either actual or constructive knowledge is sufficient for contributoryliability. The court rejected Perfect 10’s argument that Google had actual knowledge from thepresence of copyright notices on Perfect 10’s images or from the fact that Google’s AdSensepolicy stated that it monitored the content of allegedly infringing sites. The court noted thatGoogle would not necessarily know that any given image on the Internet was infringingsomeone’s copyright merely because the image contained a copyright notice. With respect to thealleged monitoring by Google, Google had changed its AdSense policy to remove the languagereserving to Google the right to monitor its AdSense partners. The court further noted that, inany event, merely because Google may have reserved the right to monitor its AdSense partnersdid not mean that it could thereby discern whether the images served by those web sites weresubject to copyright. 323The district court then turned to an analysis of whether numerous notices of infringementsent by Perfect 10 to Google were sufficient to give Google actual knowledge of infringingactivity. Google challenged the adequacy of those notices on the grounds that they frequentlydid not describe in sufficient detail the specific URL of an infringing image and frequently didnot identify the underlying copyrighted work. Some notices listed entire web sites as infringing,or entire directories within a web site. Google claimed that despite these shortcomings, itpromptly processed all of the notices it received, suppressing links to specific web pages that itcould confirm displayed infringing Perfect 10 copies. The court concluded, however, that itneed not resolve the question of whether Google had adequate actual knowledge of infringement,321322323Id. In a side, but significant, issue, Google argued that the Ninth Circuit lacked jurisdiction over thepreliminary injunction to the extent it enforced unregistered copyrights. The court rejected this argument:“Once a court has jurisdiction over an action for copyright infringement under section 411 [of the copyrightstatute], the court may grant injunctive relief to restrain infringement of any copyright, whether registered orunregistered.” Id. at 1154 n.1.Perfect 10 v. Google, 416 F. Supp. 2d 828, 851-52 (C.D. Cal. 2006), aff’d sub nom. Perfect 10 v. Amazon.com,Inc., 508 F.3d 1146, 1169 (9 th Cir. 2007).Id. at 853-54.- 83 -