view of the court’s conclusion that Google had not materially contributed to the infringing
activity of third party web sites.^597
The district court articulated the following grounds for its finding that Perfect 10 had not
adequately met its burden to show that Google sufficiently contributed to the infringing activity
for contributory liability. First, the court set forth numerous differences between Google’s
activity and the activity that had been found to materially contribute to infringement in the
Napster cases. For example, unlike in the case of the Napster system, in the instant case the
infringing third party web sites existed, were publicly accessible, and engaged in the infringing
activity irrespective of their inclusion or exclusion from Google’s index. Unlike Napster,
Google did not provide the means of establishing connections between users’ computers to
facilitate the downloading of the infringing material. Even absent Google, third party web sites
would continue to exist and would continue to display infringing content (an observation which
would seem true of all search engines). And unlike Napster, Google did not boast about how
users could easily download infringing content, nor did it facilitate the transfer of files stored on
users’ otherwise private computers.^598
In sum, the district court found that Perfect 10 had overstated Google’s actual conduct
and confused the mere provision of search technology with active encouragement and promotion
of infringing activity. The court also rejected Perfect 10’s argument based on the Supreme
Court’s Grokster case that Google had materially contributed to the infringing activity by
providing through AdSense a revenue stream to the infringing web sites. The court held that,
although the AdSense program might provide some level of additional revenue to the infringing
web sites, Perfect 10 had not presented any evidence establishing what that revenue was, much
less that it was material, either in its own right or relative to those web sites’ total income.
Accordingly, the court ruled that Perfect 10 was not likely to prevail on its claim for contributory
liability.^599
In an important ruling on appeal,^600 the Ninth Circuit reversed and remanded for factual
findings under a specialized test for contributory infringement for computer system operators.
The Ninth Circuit began its analysis by examining the issue of whether Perfect 10 had
adequately proved direct infringements to which Google could potentially contribute. Perfect 10
alleged that three parties directly infringed its images – third party web sites that copied,
displayed and distributed unauthorized Perfect 10 images, individual users of Google’s search
engine who stored full size Perfect 10 images on their computers, and users who linked to
infringing web sites, thereby automatically making cache copies of full size images in their
computers. Google did not dispute that third party web sites directly infringed Perfect 10’s
copyrights by copying, displaying and distributing unauthorized copies of Perfect 10 images.^601
(^597) Id. at 854.
(^598) Id.
(^599) Id. at 855-56.
(^600) Perfect 10 v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007).
(^601) Id. at 1169.