With the decision, Google is safe to use thumbnail images in its search results but holds contributory liability for posting infringing sites in its search results.
"It's a great decision for Internet users and the next wave of Internet innovators," Jason Schultz, staff attorney at the Electronic Frontier Foundation, told XBIZ. "Perfect 10 was basically trying to get the court to turn over control of Google's search function to them, and the court pretty much rejected all of their claims."
Zada told XBIZ that though he is disappointed about the thumbnail decision, the more important part of the ruling was the notice-and-takedown requirement. In order for Google to be responsible for removing the URLs of infringing sites, the copyright holder must provide the search engine with a notice that includes the exact location of the images.
Zada said Perfect 10 sent several notices to Google, compliant with the search engine's notice method, but he claims the search engine ignored them.
However, Schultz said Perfect 10 didn't give specific locations for each stolen photo, and that their notices were too general.
"Perfect 10 didn't do it the right way," Schultz said. "Perfect 10 doesn't like it because it has to do more work."
As for naming the posting of thumbnail images in search results "fair use," Zada said because Google displays both a clear thumbnail, as well as its full-size image when directing users to the website on which the image was originally posted, Google is directly infringing — and profiting from — the stolen images.
"They're not performing a public service by helping people find stolen material," Zada said. "What's fair about that?"
Zada also said Google knows which sites are stealing from Perfect 10 and they need to stop working with and making money from them. Many of the infringing sites Google links to carry Google ads, he said.
"There's a simple way to reduce the infringement," Zada said. "Remove all of the thumbnails or all links to the sites."
Armed with new evidence, Zada is taking the case back to court. He said that Perfect 10 has lost $50 million and that company research shows that there have been 27 billion image views and downloads of his content, and there are 1.5 million Perfect 10 images currently posted illegally online.
"The battle is far from over," Zada said, "and we think we're going to win."