court concluded that Google’s use of Perfect 10’s thumbnails was a fair use. Accordingly, the
court vacated the preliminary injunction regarding Google’s use of thumbnail images.^594
Contributory Infringement. Perfect 10 argued to the district court that Google was
contributing to the infringement of two direct infringers – third party web sites hosting and
serving infringing copies of Perfect 10 photographs, and Google Image Search users
downloading such images. The district court ruled as a preliminary matter that Perfect 10 could
not base its contributory infringement claim on users’ actions, because Perfect 10 had
demonstrated only that users of Google search were capable of directly infringing by
downloading the images, but had not submitted sufficient evidence showing the extent to which
users were in fact downloading Perfect 10’s images through Google Image Search. Thus, the
contributory infringement claim had to be based on knowledge and material contribution by
Google to the infringing activities of third party web sites hosting Perfect 10’s images.^595
With respect to the knowledge prong, the district court, citing the Supreme Court’s
Grokster case, noted that either actual or constructive knowledge is sufficient for contributory
liability. The court rejected Perfect 10’s argument that Google had actual knowledge from the
presence of copyright notices on Perfect 10’s images or from the fact that Google’s AdSense
policy stated that it monitored the content of allegedly infringing sites. The court noted that
Google would not necessarily know that any given image on the Internet was infringing
someone’s copyright merely because the image contained a copyright notice. With respect to the
alleged monitoring by Google, Google had changed its AdSense policy to remove the language
reserving to Google the right to monitor its AdSense partners. The court further noted that, in
any event, merely because Google may have reserved the right to monitor its AdSense partners
did not mean that it could thereby discern whether the images served by those web sites were
subject to copyright.^596
The district court then turned to an analysis of whether numerous notices of infringement
sent by Perfect 10 to Google were sufficient to give Google actual knowledge of infringing
activity. Google challenged the adequacy of those notices on the grounds that they frequently
did not describe in sufficient detail the specific URL of an infringing image and frequently did
not identify the underlying copyrighted work. Some notices listed entire web sites as infringing,
or entire directories within a web site. Google claimed that despite these shortcomings, it
promptly processed all of the notices it received, suppressing links to specific web pages that it
could confirm displayed infringing Perfect 10 copies. The court concluded, however, that it need
not resolve the question of whether Google had adequate actual knowledge of infringement, in
(^594) Id. In a side, but significant, issue, Google argued that the Ninth Circuit lacked jurisdiction over the preliminary
injunction to the extent it enforced unregistered copyrights. The court rejected this argument: “Once a court
has jurisdiction over an action for copyright infringement under section 411 [of the copyright statute], the court
may grant injunctive relief to restrain infringement of any copyright, whether registered or unregistered.” Id. at
1154 n.1.
(^595) Perfect 10 v. Google, 416 F. Supp. 2d 828, 851-52 (C.D. Cal. 2006), aff’d sub nom. Perfect 10 v. Amazon.com,
Inc., 508 F.3d 1146, 1169 (9th Cir. 2007).
(^596) Id. at 853-54.