## Facts

- Perfect 10, Inc. owned copyrights in photographs published in an adult magazine and on a subscription website and licensed reduced-size images for mobile downloads.
- Third-party websites copied and displayed Perfect 10’s images without authorization.
- Google operated a web and image search engine that (1) stored and displayed reduced-size “thumbnail” versions of images in search results and (2) provided links that caused a user’s browser to retrieve full-size images from third-party servers, often shown within a framed results page.
- Amazon.com, Inc. and its subsidiary A9.com used image-search functionality licensed from Google.
- Perfect 10 sent notices identifying URLs of allegedly infringing images and contended Google’s responses were insufficient.
- The district court granted a preliminary injunction in part, barring Google from creating and publicly displaying thumbnail versions of Perfect 10’s images, but largely denied broader injunctive relief, including relief targeting linking/framing and relief against Amazon.

## Issues

1. Whether Google’s creation and display of thumbnail images likely infringed Perfect 10’s copyrights or was protected by fair use.
2. Whether providing in-line links and framing that caused users to view full-size images stored on third-party servers constituted direct infringement of the display or distribution rights.
3. Whether Google or Amazon was likely liable for contributory or vicarious infringement based on third-party websites’ unauthorized hosting and dissemination of Perfect 10’s images.
4. Whether the preliminary-injunction rulings reflected a correct application of governing copyright standards.

## Decision

- The Ninth Circuit affirmed in part, reversed in part, and remanded.
- The preliminary injunction barring Google from displaying Perfect 10 thumbnails was vacated because Google was likely to prevail on a fair-use defense.
- Google was not likely directly liable for displaying or distributing the full-size images because it did not store or transmit those images; it provided HTML instructions that directed browsers to third-party servers.
- Perfect 10 showed a likelihood of success on a contributory infringement theory against Google based on knowledge of specific infringements and material contribution through facilitating access, subject to proper tailoring of any relief on remand.
- Perfect 10 did not show a likelihood of success on vicarious infringement against Google or Amazon due to insufficient proof of the right and ability to control third-party infringements and a direct financial benefit tied to the infringements.
- The denial of preliminary injunctive relief against Amazon was upheld on the existing record.

## Legal Principles

- A search engine’s display of copyrighted images as thumbnails can be fair use when the use is highly transformative as an electronic reference and indexing tool, even if commercial.
- In assessing market effect under fair use, transformative use reduces any presumption of market harm; speculative or hypothetical licensing harm is insufficient, particularly where harm primarily arises from third-party infringement.
- For direct “display” liability online, a defendant generally must store the image on its own server; providing links or HTML instructions that cause a browser to retrieve an image from a third-party server does not, by itself, constitute direct display of that image.
- Direct “distribution” liability requires dissemination of copies by the defendant; a defendant that neither possesses nor transmits the full-size image files from its own systems is not a direct distributor of those images.
- Contributory infringement may arise where a party, with knowledge of specific infringing activity, materially contributes to that infringement, including by facilitating access to infringing material.
- Vicarious infringement requires both (1) the right and ability to supervise the infringing conduct and (2) a direct financial benefit from the infringement; generalized advertising revenue tied to overall service use is not enough without a stronger link to the infringing activity.

## Conclusion

The court held that image-search thumbnails were likely protected by fair use and that linking or framing full-size images hosted on third-party servers was not direct infringement under the server-based approach, while leaving open potential secondary liability—particularly contributory infringement—where a search provider has specific knowledge and materially assists access to infringing content.


Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007)