Proving Copyright Infringement

Direct Infringement

To prove direct copyright infringement two elements must be proven.

• First, plaintiff must prove ownership of a valid copyright. 

• Second, plaintiff must prove that the defendant copied the protectable expression.  

Photographers have been the first to bring a claim of copyright infringement against search engines.  Kelly v. Arriba (see also summary) is the most notable of these cases.  In this case the plaintiff, a photographer who maintained two web pages with copyrighted material, sued Arriba Soft Corp, a search engine provider for copyright infringement.  Specifically, the plaintiff alleged that defendant infringed on his copyrighted works by displaying a thumbnail image of his work on the search engines results page. The court found that the use of the thumbnail image was not copyright infringement because the use was fair. (Learn more about Kelly v. Arriba and Fair use see Fair Use).  While the court ruled on whether the search engine’s use of the thumbnail image was copyright infringement, it did not decided whether the use of the full image is copyright infringement.

Contributory Infringement

Contributory copyright infringement occurs when one engages in conduct that encourages or assists another in infringing.  It requires objective knowledge, such that the defendant knew or should have known about the infringing activity.  Proving that the search engine provider had “knowledge” of the infringement is a challenge. Nevertheless, Perfect 10, a supplier of adult entertainment, is pursuing, inter alia, a claim of contributory copyright infringement against Google and several web site operators that have illegally taken its protected images. Perfect 10 alleges that Google, through its keyword advertising program, “has set up means by which the sites with infringing content ‘can for a fee, have their advertisements appear in response to searches performed on various key words, including those constituting … protected by Perfect 10 Rights of Publicity.” 

Specifically, Perfect 10 alleges that Google infringes on its copyrighted works by providing consumers of Perfect 10 access to infringing websites through two of its search functions: Web Search and Search Images.  Web search is a “standard search by which terms are inserted and a list of links in order of relevance, including a description of the content with the terms requested….” Search Images is feature where a search term(s) yields images and copies of Perfect 10’s copyrighted works. Perfect 10 believes that Google infringes on its copyright in five ways:

1. Google copies Perfect 10’s copyrighted information onto its server and provides the images to consumers through its search images function

2. Google displays a “full sized” image of Perfect 10’s copyrighted work in a separate window, enticing the consumer to believe that the protected image is actually located on Google’s server

3. When a search is performed using Perfect 10 model’s name as a search term, the links which appear at the top of the search results frequently lead to free, full sized images of Perfect 10’s copyrighted works

4. Linking consumers to sites featuring hacked Perfect 10 passwords for free access to the Web site

5. Google markets and sells the right to use Perfect 10’s marks and Perfect 10’s rights of publicity to advertisers and entities

Perfect 10 intends to defeat the challenging of proving that Google had knowledge of infringement by providing evidence that Google received at least 27 Digital Millennium Copyright Act compliant notices that inform Google of infringements on at least 2,700 URLs.  Whether Perfect 10 will prevail has not been determined.  The case is still in the early litigation stages.  To see Perfect 10’s complaint click here.

Although commentators have suggested that contributory copyright infringement is a challenging claim to bring against search engine providers, the claim is nevertheless being pursed.  The benefit of the pursuit, however, has not yet been determined. 

REFERENCES:

• 17 USCS § 501.

• Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir., 2003).

• Perfect 10, Inc. v. Google, Inc., U.S.D.C., C.D.Cal., Civil Action No. 04-9484 at http://cyber.law.harvard.edu/blogs/gems/palfrey/Perfect10ComplaintPDFCropped.pdf.

• Infringement of Software Copyrights, Intellectual Property for CS Students: Copyrights – Infringement, at http://www.cs.duke.edu/courses/cps182s/fall02/cscopyright/Copyrights/Copyright-Infringement.htm (last visited Apr. 10).

• Peter Pizzi, Perfect 10 v. Google: Adult Web Site Challenges Search Engine on Image Hits, N.Y. L.J. Volume 233 No. 2, (Jan. 4, 2005) at http://www.cfg-lawfirm.com/articles/pizzi-google-p10.pdf.