A recent decision from the Ninth Circuit clarifies the circumstances under which a company may be held liable for contributory copyright infringement. In Perfect 10, Inc. v. Amazon.com, Inc., 2007 WL 4225819 (9th Cir. 2007), Perfect 10, a website selling copyrighted images of nude celebrities, sued Google and other entities for copyright infringement. Perfect 10 alleged, among other claims, that Google should be held secondarily liable for copyright infringement by other websites that display Perfect 10’s copyrighted images.
Google’s search functionality allows Internet users to search for images based on textual search strings and to then view search results in the form of scaled-down images (“thumbnails”). The user can select an image by clicking on it, at which point Google transfers the user to a page divided into two parts, or frames. The top frame displays a thumbnail as it is stored on Google’s servers. The court concluded that such storage falls within the Copyright Act’s definition of Fair Use. The bottom frame, however, displays Perfect 10’s copyrighted images exactly as they appear on third-party websites that have infringed Perfect 10’s copyright by illegally displaying the images. Google did not dispute that such display by third-party websites constituted copyright infringement.
The court began its analysis with several underlying rules regarding secondary copyright infringement. Initially, contributory liability for copyright infringement may be predicated on:
- Actively encouraging (or inducing) infringement through specific acts, or
- Distributing a product distributees use to infringe copyrights, if the product is not capable of substantial non-infringing uses.
The court concluded that Google could be liable under the first prong. Noting that an element of intent is required for contributory infringement and that tort law imputes to a tortfeasor the intention to cause the natural and probable consequences of his conduct, the court reasoned that an actor may be contributorily liable for intentionally encouraging direct infringement if the actor knowingly takes steps that are substantially certain to result in direct infringement.
The court reasoned that a computer system operator can be held contributorily liable if it has actual knowledge that specific infringing material is available using its system and can take simple measures to prevent further damage to copyrighted works, yet continues to provide access to infringing works. The court then ruled that Google could be contributorily liable if it had knowledge that infringing Perfect 10 images were available using its search engine and it could have, but did not, take simple measures to prevent future damage to Perfect 10’s copyrighted content.
That Google’s search engine is also useful for searching and displaying noninfringing content did not sufficiently detract from the effect its world-wide service has on copyrighted and infringing content. The court remanded the issue of Google’s knowledge of the infringing content back to the district court for factual determinations.
If your business is in any way connected to potentially infringing activity, it is important to consider the legal ramifications of your connection to the activities at issue. Knowledge of infringing activity may be a basis for liability if your business had the opportunity to remedy or prevent the infringing conduct but failed to take action.
View the full opinion here.