Perfect 10, Google Both Plan to Appeal U.S. Ruling

Rhett Pardon
BEVERLY HILLS, Calif. — After winning a preliminary injunction against search engine Google, adult publisher Perfect 10 is planning to appeal part of a federal court’s decision to decline enjoining Google’s linking to other websites that infringe Perfect 10 images, XBiz has learned.

Meanwhile, Google on Thursday said it would appeal the preliminary injunction issued earlier this week.

U.S. Judge A. Howard Matz rejected Google’s argument that the display of thumbnail images for the purpose of search falls under the fair-use doctrine, which allows the use of a small portion of a copyright work, provided the use is properly attributed and doesn’t diminish the value of the work.

But he also rejected Perfect 10’s claim that Google’s practice linking to full-size images is another form of infringement. The federal judge, in the opinion, noted that Google sends searchers to the original sites to load the photos.

Perfect 10 owner Norman Zada of Beverly Hills, Calif., claims his company has spent $36 million over the past nine years building its Perfect 10 brand, including $12 million spent capturing 800 models in photos.

Zada has sued both Google and Amazon.com, which happens to license the technology in question from Google.

The long-running case could broaden rules for the use of copyrighted thumbnails on the web.

In the preliminary injunction ruling, Matz said that Google’s display of thumbnail images from its site likely amounts to copyright infringement.

Perfect 10 general counsel Daniel Cooper told XBiz late Thursday that he wasn’t surprised to learn that Google vows to challenge the preliminary injunction. “We expected the cross-appeal,” he said. “We’ll be back in court on March 8.”

Cooper said that both parties currently are involved in discovery disputes regarding issues related to the secondary liability portion of the case, including evidence similar to that which is being sought by the U.S. government, namely, what percentage of Google’s traffic and business is due to searches for adult content.

Cooper said that information is being sought by Perfect 10 to test its contention that Google, while claiming to “do no evil,” under the guise of being a search engine, is substantially benefiting from a massive misappropriation of adult images.

In a statement Thursday, Google attorney Michael Kwun said that the “preliminary injunction will have no effect on the vast majority of image searches, and will affect only searches related to Perfect 10.”

Kwun said that Matz ordered both sides to work together on a “very narrowly tailored” preliminary injunction that would not impede Google’s search engine, beyond Perfect 10 photos.