German court decides Google's image search does not infringe copyright

By EDRi · May 5, 2010

This article is also available in:
Deutsch: [Google Image Suche verletzt laut BGH keine Urheberrechte |]

On 29 April 2010, the German Federal Supreme Court ruled that Google’s image
search did not infringe copyright.

The ruling comes in a case filed by an artist because, at the introduction
of her name, Google’s search engine was displaying thumbnail images of her
pictures taken from her own site.

Google’s search engine has a function allowing the searching of images
posted by third parties on the Internet. The images found are displayed as
scaled down preview pictures (thumbnails) which have a smaller pixel size
than the original images. The preview pictures also include a link to the
websites which displays the original photos.

The Court decided that by showing these images, Google was not in breach
of copyright because the artist had not used the simple technical measure
allowing her to stop Google from indexing her site. Although the artist had
not explicitly consented to the use of the images she, however, had not
blocked her website from being indexed by search engines thus giving an
implicit permission to any search engine to display the thumbnail images.

Site owners have the possibility to use commands in the website that
can tell search engines not to index all or part of their site or files.
Google has a crawling programme, Googlebot, that ignores the images
disallowed by web users. This did not happen in this case because the artist
did not make use of this tool.

The Court also said that when a person’s images appear in Google searches
as published on-line by third parties without the artist’s permission, the
company would be liable only if it was informed of the copyright
infringement and did not act upon it. In agreement with the E-Commerce
Directive, the service providers are not liable for the illegal acts of
their users until they are notified about them.

This is a first case where Google wins in Germany as it had previously lost
two other cases over the appearance of thumbnails of artists’ works in its
image search service. In the US, Google succeeded in winning a similar
case under the provision of “transformative use” of the US copyright law.
The provision says that a “transformative use” of a work is a fair use as it
puts it under a different use than the original. “A search engine provides
social benefit by incorporating an original work into a new work, namely, an
electronic reference tool,” said the ruling.

Google European Public Policy Blog commented: “We’re heartened by the German
Supreme Court´s ruling that Google Image Search doesn’t infringe copyright.
(…) Today´s ruling makes it clear not just for Google, its users in
Germany and all owners of websites containing images, but also for all
providers of image search services operating in the country: showing
thumbnail images within search results is legitimate and millions of users
in Germany benefit from being able to discover visual information at the
click of a mouse.”

BGH: Google’s image search is no copyright infringement (29.04.2010)

German Supreme Court rules that Image Search does not infringe copyright

Google image search results do not infringe copyright, says German court