Perfect 10 v. Google, Inc.

• Decision Date: 17 February 2006
• Docket Number: No. CV 04-9484AHM.,CV 04-9484AHM.
• Citation: 416 F.Supp.2d 828
• Parties: PERFECT 10, Plaintiff, v. GOOGLE, INC., et al., Defendants.
• Court: U.S. District Court — Central District of California

Page 828

416 F.Supp.2d 828

PERFECT 10, Plaintiff, v. GOOGLE, INC., et al., Defendants.

No. CV 04-9484AHM.

United States District Court, C.D. California.

February 17, 2006.

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Daniel J. Cooper, Beverly Hills, CA, Jeffrey N. Mausner, Berman Mausner and Resser, Jeffrey D. Goldman, Russell J. Frackman, Mitchell Silberberg and Knupp, Los Angeles, CA, for Plaintiff.

Jennifer A. Golinveaux, Michael S. Brophy, Andrew P. Bridges, Winston and Strawn, San Francisco, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART PERFECT 10'S MOTION FOR PRELIMINARY INJUNCTION AGAINST GOOGLE

MATZ, District Judge.

I. INTRODUCTION

The principal two-part issue in this case arises out of the increasingly recurring conflict between intellectual property rights on the one hand and the dazzling capacity of internet technology to assemble, organize, store, access, and display intellectual property "content" on the other hand. That issue, in a nutshell, is: 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 inline linking, it displays copyrighted images served by another website?

Plaintiff Perfect 10, Inc. ("P10") filed separate suits against Google, Inc. and against Amazon.com, Inc. and its subsidiary, A9.com, Inc.¹ (collectively, "Amazon"), alleging copyright and trademark infringement and various related claims. The suits were consolidated. P10 moves now for a preliminary injunction against both Defendants, solely on the basis of its copyright claims. P10 seeks to prevent Defendants' image search engines from displaying "thumbnail" copies of P10's copyrighted images and also from linking to third-party websites which host and serve infringing full-size images.

The Court conducted a hearing on November 7, 2005. The Court now concludes that Google's creation and public display of "thumbnails" likely do directly infringe P10's copyrights. The Court also concludes, however, that P10 is not likely to succeed on its vicarious and contributory liability theories.

This Order will address P10's motion for preliminary injunctive relief against Google. Amazon licenses from Google much of the technology whose use by Amazon P10 challenges. A separate order will address P10's motion against Amazon.

II. BACKGROUND

A. The Parties

1. Perfect 10

P10 publishes the adult magazine "PERFECT 10" and operates the subscription website, "perfect10.com," both of which feature high-quality, nude photographs of "natural" models. Pl.'s Zada Decl. ¶¶ 9-10.² During the last nine years, P10 has invested $36 million to develop its brand in its magazine and its website. Id. ¶¶ 11. This investment includes approximately $12 million spent to photograph over 800 models and create 2,700 high quality images that have appeared in its magazine, along with an additional approximately 3,300 images that have appeared on perfect10.com. Id. P10 has obtained registered copyrights for its photographs from the United States Copyright Office. Id., Ex. 1.

P10 generates virtually all of its revenue from the sale of copyrighted works: (1) it sells magazines at newsstands ($7.99 per issue) and via subscription; (2) it sells website subscriptions to perfect10.com for $25.50 per month, which allow subscribers to view P10 images in the exclusive "members' area" of the site³; and (3) since early 2005, when P10 entered into a licensing agreement with Fonestarz Media Limited, a United Kingdom company, for the worldwide sale and distribution of P10 reducedsize copyrighted images for download and use on cell phones, it has sold, on average, approximately 6,000 images per month in the United Kingdom. Id. ¶ 16. Aside from the licensing agreement with Fonestarz Media Limited, P10 has not authorized any third-party individual or website to copy, display, or distribute any of the copyrighted images which P10 has created. Id. ¶ 17.

2. Google

Google describes itself as a "software, technology, Internet, advertising, and media company all rolled into one." Google, Inc., 2004 Annual Report (Form 10-K), at 9. Google is one of the most highly frequented websites on the internet. Pl.'s Zada Decl., Ex. 3 (report from Alexa Internet, Inc. showing http://www.google.com/ranking as the third most visited site in the world). Google operates a search engine located at the domain name "google.com." Google's search engine indexes websites on the internet via a web "crawler," i.e., software that automatically scans and stores the content of each website into an easily-searchable catalog. Def.'s Levine Decl. ¶¶ 13-14. Websites that do not wish to be indexed, or that wish to have only certain content indexed, can do so by signaling to Google's web crawler those parts that are "off limits." Google's web crawler honors those signals.

Google operates different search engines for various types of web content. All search queries are text-based, i.e., users input text search strings representing their query, but results can be in the form of text, images, or even video. Id. ¶ 21. Thus, for example, Google's basic web search, called Google Web Search, located at http://www.google.com/, receives a text search string and returns a list of textual results relevant to that query. Google Image search, on the other hand, receives a text search string and returns a number of reduced-sized, or "thumbnail" images organized into a grid.⁴

Google stores content scanned by its web crawler in Google's "cache." For Google Web Search, because its "web page index is based entirely on the textual part of web pages and not the images, [its] web page cache contains only the text pages, and not the images that those pages include when displayed." Def.'s Levine Decl. ¶ 21. For Google Image Search, too, the results depend solely on the text surrounding an image.⁵ Id. ¶ 22. But for Image Search, Google also stores thumbnails in its cache, in order to present the results of the user's query. Def.'s MacGillivray Decl. ¶ 3 ("The browser obtains `thumbnail' images from Google's server .. . ."); Pl.'s Mausner Decl., Ex. 118, Google's Resp. to P10's Req. for Admis. No. 24 ("Google admits that its servers store reduced-size extracts of images."). A user of Google Image Search can quickly scan the grid of returned thumbnails to determine whether any of the images responds to his search query. He "can then choose to click on the image thumbnail and show more information about the image and cause the user's browser ... to open a `window' on the screen that will display the underlying Web page in a process called `framing.'" Def.'s MacGillivray Decl. ¶ 3.

"Framing" is a method of "combin[ing] multiple pages in a single window so that different content can be viewed simultaneously, typically so that one `frame' can be used to annotate the other content or to maintain a link with an earlier web page." Def.'s Levine Decl. ¶ 24 n. 1. In other words, when a user clicks on a thumbnail returned as the result of a Google Image Search, his computer pulls up a page comprised of two distinct frames, one hosted by Google and a second hosted by the underlying website that originally hosted the full-size image. The two frames are divided by a gray horizontal line a few pixels high. The upper frame is the Google frame. It contains the thumbnail, retrieved from Google's cache, and information about the larger image, including the original resolution of the image and the specific URL associated with that image.⁶ The Google frame also states that the thumbnail "may be scaled down and subject to copyright" and makes clear that the upper frame is not the original context in which the full-size image was found, stating, "Below is the image in its original context on the page: http://." The lower frame contains, or shows, the original web page on which the original image was found. Google neither stores nor serves any of the content (either text or images) displayed in the lower frame; rather, the underlying third party website stores and serves that content. Id. ¶¶ 27-29. However, because it is Google's web-page that composites the two frames, the URL displayed in the browser's address bar displays "images.google.com." Id.

Attached hereto as Exhibit A is an example of the two-frame structure just described, containing in the upper frame one of the thumbnail images that appeared on the display of thumbnails retrieved by an image search for "Vibe Sorenson," a P10 model.

Google generates much of its revenue through two advertising programs: AdWords, for advertisers, and AdSense, for web publishers. Def.'s MacGillivray Decl. ¶ 9. Through AdWords, advertisers purchase advertising placement on Google's pages, including on search results pages and Google's Gmail web-based email service. Id. Google's AdSense program allows pages on third party sites "to carry Google-sponsored advertising and share [with Google the] revenue that flows from the advertising displays and click-throughs." Id. ¶ 10. "To participate [in AdSense], a website publisher places code on its site that asks Google's server to algorithmically select relevant advertisements" based on the content of that site. Id.⁷

B. Procedural History

On November 19, 2004, P10 filed suit against Google asserting various copyright and trademark infringement claims: (1) direct copyright infringement, (2) vicarious copyright infringement, (3) contributory copyright infringement, (4) circumvention of copyright protection systems under the Digital Millennium Copyright Act ("DMCA"), (5) direct trademark infringement, (6) contributory trademark infringement, (7) vicarious trademark infringement, (8) trademark dilution (federal), (9) unfair competition, (10) wrongful use of a registered mark, (11) trademark dilution (state), and (12) violation of rights of publicity. Compl. ¶¶ 35-115.

C. Proposed Injunctive Relief

P10 seeks to preliminarily enjoin...