others’ copyrights. Accordingly, the district court held that Perfect 10 had not established a
likelihood of proving the second prong necessary for vicarious liability.^618
Based on its various rulings, the district court concluded that it would issue a preliminary
injunction against Google prohibiting the display of thumbnails of Perfect 10’s images, and
ordered the parties to propose jointly the language of such an injunction.^619
On appeal, the Ninth Circuit affirmed the district court’s ruling that Perfect 10 had not
shown a likelihood of establishing Google’s right and ability to stop or limit the directly
infringing conduct of third party web sites. The Ninth Circuit began its analysis by noting that,
under Grokster, “a defendant exercises control over a direct infringer when he has both a legal
right to stop or limit the directly infringing conduct, as well as the practical ability to do so.”^620
With respect to the first part of this test, the court noted that, unlike in Fonovisa where the swap
meet operator had contracts with its vendors giving it the right to stop the vendors from selling
counterfeit recordings on its premises, Perfect 10 had not shown that Google had contracts with
third party web sites that empowered Google to stop or limit them from reproducing, displaying
and distributing infringing copies of Perfect 10’s images. Although Google had AdSense
agreements with various web sites, an infringing third party web site could continue to
reproduce, display, and distribute its infringing copies after its participation in the AdSense
program was ended.^621 And unlike the Napster system, in which Napster’s control over its
closed system that required user registration and enabled Napster to terminate its users’ accounts
and block their access to the Napster system, Google could not terminate third party web sites
distributing infringing photographs or block their ability to host and serve infringing full size
images on the Internet.^622
The Ninth Circuit also affirmed the district court’s findings that Google lacked the
practical ability to police the third party web sites’ infringing conduct. “Without image-
recognition technology, Google lacks the practical ability to police the infringing activities of
third-party websites.”^623 Google’s inability to police distinguished it from the defendants held
liable in the Napster and Fonovisa cases. Accordingly, Perfect 10 had failed to establish the right
and ability to control prong of vicarious liability.^624 Having so concluded, the Ninth Circuit
(^618) Id.
(^619) Id. at 859.
(^620) Perfect 10 v. Amazon.com, Inc., 508 F.3d 1146, 1173 (9th Cir. 2007).
(^621) Id.
(^622) Id. at 1174.
(^623) Id.
(^624) Id. The Ninth Circuit also stated, without analysis, that it agreed with the district court’s conclusion that
Amazon.com did not have the right and ability to supervise the infringing activity of Google or third parties,
and that the district court did not clearly err in concluding that Amazon.com lacked a direct financial interest in
such activities. Id. at 1176.