According to the Hamburg District Court, Google’s image search infringes German copyright law when it displays thumbnail images in its search results. On September 26, 2008, Google, Inc. lost two separate copyright lawsuits (Cases 308 O 42/06 and 308 O 248/07) against German photographer Michel Bernhard and artist Thomas Horn for displaying thumbnail images of their works in Google Image search results. In its decision for photographer Michel Bernhard, the Court of Hamburg ruled that ``It doesn’t matter that thumbnails are much smaller than original pictures and are displayed in a lower resolution. (…) By using photos in thumbnails, no new work is created, that may have justified displaying them without permission".
Another German court, the Jena Court of Appeals, had already held that thumbnail images could violate German copyright law (Case No. 2 U 319/07), but in that case the court found that the plaintiff had implicitly consented to having its images shown in search engine results because the plaintiff had inserted tools to help search engines identify the images.
When considering the impact of the September 26 decisions one has to keep in mind that the District Court of Hamburg is typically friendly to owners of intellectual property rights. It is no coincidence that the complaints were filed with this particular court. In the past, the Federal Supreme Court has reversed a number of the Hamburg Court’s IP owner friendly decisions. Unsurprisingly, Google has appealed both decisions rendered by the Hamburg Court in September.
Another interesting decision is the September 30, 2008 decision in which the Munich Local Court ("Amtsgericht") ruled that Internet protocol addresses are not personal data for purposes of German data protection law (Party names unavailable, AG Munich, Az. 133 C 5677/08, 9/30/08).
The September 30, 2008 Munich decision dismissed a complaint requesting that a platform operator refrain from storing IP addresses. The court held that the plaintiff lacked standing to sue because he never asserted that he actually used the website. In an obiter dictum the court then stated that it believes that IP addresses are not personal data and the complaint would have to be dismissed for this reason also. The judgment lacks a detailed analysis. This decision has to be taken with a large grain of salt. The Munich Local Court is solely competent for small claims and has no expertise in data protection law. The view of the court contradicts the overwhelming view that IP addresses are personal data under German law, including a previous court decision rendered in March 2007 by the Local Court for Middle Berlin.