would likely succeed in establishing that Google was contributorily liable for in-line linking to
full size infringing images under the test the court had enunciated.^612
Similarly, the Ninth Circuit remanded for further proceedings on whether Amazon.com,
which Perfect 10 had also sued based on its offering of the A9.com search engine, should be held
contributorily liable. “It is disputed whether the notices gave Amazon.com actual knowledge of
specific infringing activities available using its system, and whether Amazon.com could have
taken reasonable and feasible steps to refrain from providing access to such images, but failed to
do so.”^613
Vicarious Liability. Perfect 10 also asserted claims against Google for vicarious liability.
With respect to the financial benefit prong, the district court found that Google obtained a direct
financial benefit from the infringing activity through its AdSense revenues under the standard
articulated in the Ninth Circuit’s Fonovisa decision,^614 in which it held that the financial benefit
prong can be satisfied where the availability of infringing material acts as a “draw” for customers
to the site. Under that standard, the district court found it likely that at least some users were
drawn to Google Image Search because they knew that copies of Perfect 10’s photos could be
viewed for free, and Google derived a direct financial benefit when users visited AdSense
partners’ web sites that contained such infringing photos.^615
Notwithstanding the financial benefit to Google, however, the district court found that
Google had insufficient control over the infringing activity to impose vicarious liability because
the Web is an open system. “Google does not exercise control over the environment in which it
operates – i.e., the web. Google’s ability to remove a link from its search index does not render
the linked-to site inaccessible. The site remains accessible both directly and indirectly (i.e., via
other search engines, as well as via the mesh of websites that link to it). If the phrase ‘right and
ability to control’ means having substantial input into or authority over the decision to serve or
continue serving infringing content, Google lacks such right or ability.”^616 Moreover, Google’s
software lacked the ability to analyze every image on the Internet, compare each image to all
other copyrighted images that existed in the world, or even to that much smaller subset of images
that had been submitted to Google by copyright owners such as Perfect 10, and determine
whether a certain image on the web infringed someone’s copyright.^617 Finally, the court ruled
that the “right and ability to control” prong required more than Google’s reservation in its
AdSense policy of the right to monitor and terminate partnerships with entities that violated
(^612) Id. at 1172- 73
(^613) Id. at 1176.
(^614) Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996).
(^615) Perfect 10 v. Google, 416 F. Supp. 2d at 856-57.
(^616) Id. at 857-58.
(^617) Id. at 858.