The German Federal Supreme Court has decided that Google is not liable for unlawful copyright infringement for displaying thumbnail preview images of the artist’s photographs in its search engine. Maud Tutsche v. Google Inc., Case No. I ZR 69/08 (Ger. Fed. Supr. Ct., April 29, 2010).
Google’s search engine includes a function that allows users to search for images by using text-based search terms. The search result reveals images that third parties have published on the internet in connection with the search term (e.g., the artist’s name), displaying these images as scaled-down preview pictures (thumbnails) which have a smaller pixel size than the images shown on the original website and include a link allowing the user to access the website displaying the original photographs.
Claimant Maud Tutsche is an artist who maintained a website displaying pictures of her own works. Tutsche argued that Google had unlawfully infringed her copyright by displaying thumbnails of pictures of her artwork without her express approval.
Both the Jena Court of Appeal and the Erfurt District Court had already dismissed Tutsche’s lawsuit. Although these courts held that the Google’s display of thumbnails constituted an unlawful copyright infringement (for lack of an express or an implied legal declaration of Tutsche authorizing Google to use her works as preview pictures), they found that Tutsche’s lawsuit was an abuse of rights pursuant to Section 242 of the German Civil Code and therefore dismissed it. Tutsche appealed.
The Federal Supreme Court took the view that even if Google behavior encroached upon the claimant’s right of presentation of her works pursuant to Section 19a of the German Copyright Act, it could not be considered unlawful since the claimant had impliedly consented to the display of thumbnails. In the Federal Supreme Court’s view, Google could reasonably interpret Tutsche’s behavior as an implied consent to display her works as preview pictures since the she had made available the complete content of her website without using existing technical tools to block search engines from finding and displaying her works.
In an obiter dictum, the Federal Supreme Court expressly excluded from its rational the display of images which had been posted by unauthorized third parties and explained that in such cases a search engine provider might be liable for copyright infringements once it had obtained knowledge of the unlawful nature of the data it had stored pursuant to the E-Commerce Directive No. 2000/31.
Practice Note
In its judgment, the German Federal Supreme Court decided one of the fundamental issues concerning the use of copyright protected material in the internet in favor of search engine providers. At the same time, the German Federal Supreme Court clearly defined those circumstances where consent of the copyright owner will be implied and those circumstances where it will not.
