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Perfect 10 Inc v. Amazon.com Inc 508 F.3d 1146 (9th Cir.

By: Alo Dutt Roll No: 478 LLM (IPR)

PLAINTIFF: Perfect 10, Inc (An adult Entertainment Magazine) DEFENDANT: Amazon.com, Inc and Google Inc (Search Engines) CITATION: 508 F.3d 1146 DECIDED: May 16, 2007 COURT: United States Court of Appeals for the Ninth Circuit

Plaintiff i.e. Perfect 10 was an adult entertainment magazine that sells copyrighted images of models and operates a subscription website on the internet. Defendant Google internet search engine, providing users with thumbnail version of perfect 10 Incs copyrighted photographic images of models, and thereby assisted a worldwide audience to access infringing materials. The plaintiff requested a preliminary injunction for Google to stop creating and distributing thumbnails of its images in its Google Image Search service, and for it to stop indexing and linking to sites hosting such images.

Does a search engine infringe copyrighted images when it displays them on an image search function in the form of thumbnails but not infringe when, through in-line linking, it displays copyrighted images served by another website? Whether Googles use of Perfect 10s images as thumbnails was a fair use?

Plaintiff alleged that Googles search engine directly infringed its exclusive rights to display and distribute the full-size and reduced-size (thumbnail) images under the Copyright Act and was contributory and vicariously liable for linking to infringing third party sites. Perfect 10 also claimed that Amazon was secondarily liable for in-line linking to Googles search results. It was also contended that Googles use of the thumbnails was a commercial use; it derived commercial benefit in the form of increased user traffic and advertising revenue.

Court Analysis
Pursuant to 17 U.S.C. Section 107, courts look at four factors in determining whether a particular use of a copyrighted work is a permissible fair use: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

Ninth Circuit court concluded that Googles use of thumbnails is highly transformative and therefore likely a fair use, especially in light of the public utility served by its search engine and the transformative nature of its use. The courts have articulated the principle that the fair use factors must be analysed flexibly in light of new circumstances, especially during periods of rapid technological change.