Advanced Copyright Issues on the Internet - Fenwick & West LLP

would likely succeed in establishing that Google was contributorily liable for in-line linking tofull size infringing images under the test the court had enunciated. 339Similarly, the Ninth Circuit remanded for further proceedings on whether Amazon.com,which Perfect 10 had also sued based on its offering of the A9.com search engine, should be heldcontributorily liable. “It is disputed whether the notices gave Amazon.com actual knowledge ofspecific infringing activities available using its system, and whether Amazon.com could havetaken reasonable and feasible steps to refrain from providing access to such images, but failed todo so.” 340Vicarious Liability. Perfect 10 also asserted claims against Google for vicarious liability.With respect to the financial benefit prong, the district court found that Google obtained a directfinancial benefit from the infringing activity through its AdSense revenues under the standardarticulated in the Ninth Circuit’s Fonovisa decision, 341 in which it held that the financial benefitprong can be satisfied where the availability of infringing material acts as a “draw” forcustomers to the site. Under that standard, the district court found it likely that at least someusers were drawn to Google Image Search because they knew that copies of Perfect 10’s photoscould be viewed for free, and Google derived a direct financial benefit when users visitedAdSense partners’ web sites that contained such infringing photos. 342Notwithstanding the financial benefit to Google, however, the district court found thatGoogle had insufficient control over the infringing activity to impose vicarious liability becausethe Web is an open system. “Google does not exercise control over the environment in which itoperates – i.e., the web. Google’s ability to remove a link from its search index does not renderthe linked-to site inaccessible. The site remains accessible both directly and indirectly (i.e., viaother search engines, as well as via the mesh of websites that link to it). If the phrase ‘right andability to control’ means having substantial input into or authority over the decision to serve orcontinue serving infringing content, Google lacks such right or ability.” 343 Moreover, Google’ssoftware lacked the ability to analyze every image on the Internet, compare each image to allother copyrighted images that existed in the world, or even to that much smaller subset of imagesthat had been submitted to Google by copyright owners such as Perfect 10, and determinewhether a certain image on the web infringed someone’s copyright. 344 Finally, the court ruledthat the “right and ability to control” prong required more than Google’s reservation in itsAdSense policy of the right to monitor and terminate partnerships with entities that violatedothers’ copyrights. Accordingly, the district court held that Perfect 10 had not established alikelihood of proving the second prong necessary for vicarious liability. 345339340341342343344345Id.at 1172-73Id. at 1176.Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9 th Cir. 1996).Perfect 10 v. Google, 416 F. Supp. 2d at 856-57.Id. at 857-58.Id. at 858.Id.- 87 -