If you love or hate nekkid pictures on a computer screen, you may want to read the Ninth Circuit’s opinion today in Perfect 10, Inc. v. Amazon.com, Inc., No. 06-55405 (9th Cir. May 16, 2007).  For the indifferent among you, Blawgletter will supply a synopsis.

Perfect 10 makes pictures of "nude models" available on its websites.  Users of Google and Amazon.com can get HTML links to copies of the photos on non-Perfect 10 websites.  Google also displays thumbnail copies of the pix.  The district court preliminarily enjoined Google from exhibiting the thumbnails but declined to stop either company from furnishing links to infringing copies of the images.

The Ninth Circuit affirmed in part and reversed in part.  The court agreed that giving users an HTML link to infringing websites didn’t directly infringe Perfect 10’s copyrights and that Google’s use of thumbnail versions probably did.  But the court disagreed with the district court’s conclusions (1) that Google probably wouldn’t win its "fair use" defense to the thumbnail claim and (2) that Perfect 10 wouldn’t likely prove "contributory infringement" by the provision of links to infringing copies of the photos.  The court also directed the district court to consider Perfect 10’s Digital Millennium Copyright Act claim, which the district court didn’t reach.

So:

  • Links to infringing copies of copyright material DON’T directly infringe.
  • Thumbnails DO but may evade liability with fair use defense.
  • Links may contributorily infringe depending on circumstances (such as whether link-provider has notice of and ability to control access to infringing material).
  • DMCA may apply.

Barry Barnett

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