Last year, we were surprised when a court issued an injunction against Google in a lawsuit brought by adult entertainment magazine publisher "Perfect 10." Perfect 10 had a variety of complaints against Google, all relating to the fact that others (not Google) had taken Perfect 10 images and put them online. Google then indexed that content and showed thumbnails of the images in its image search results. Of course, Google had no way of knowing that the images were unauthorized copies -- and other courts had said that using thumbnails is fair use. In this case, Perfect 10 tried some unique reasoning, claiming that thumbnails shouldn't be fair use in this case because it also offered the pictures via a mobile service, and the thumbnails were effectively the same size as when seen on mobiles (i.e., claiming they're not really thumbnails). That seems like a stretch on the best of days, but especially since (again) Google had nothing to do with actually putting that content online. It was just indexing it. However, the court ruled that because some of the sites also included Google AdSense ads, Google was directly profiting. Of course, that seems like a totally different issue, so the entire decision was something of a mixed bag, at times saying that thumbnails by themselves aren't infringing, but there were cases where they were. The latest is that an Appeals Court has overturned the lower court ruling, saying (again) that thumbnails are fair use... but still opening up potential liability if Google could have done a better job to "prevent future damages." That seems to leave the whole thing wide open for the lower court (which the case is being sent back to) to screw up all over again. So, despite what the headlines might read, this case is far from over.
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