German Supreme Court Rules on Google’s Image Search

The German Supreme Court (Bundesgerichtshof, “BGH”) ruled on 29 April 2010 (I ZR 69/08 that Google is not liable for copyright infringement due to having displayed copyright protected works as reduced-resolution images (so called “thumbnails”) in Google’s image search results. Referring to the recent AdWords decision of the Court of Justice of the European Union (joined cases C-236/08 – C-238/08), the BGH held that a search engine provider may only be liable for copyright infringement, if it has become aware of the unlawful nature of the data.

Google’s image search allows users to search for images by using search terms. As a result, a selection of thumbnail images is presented to the users. The images include a link, which allows the users to access the website displaying the original photo. In order to present the thumbnail pictures promptly upon each query, Google regularly searches the Internet for images and stores them on its own servers. The case at hand was brought to court by an artist, who had uploaded photos of her work to her own website. The artist alleged Google of copyright infringement as the photos were displayed in Google’s image search results.

The BGH noted that the artist had neither given an express nor an implied consent authorizing Google’s use of her works as thumbnails in Google’s image search. However, she had made the content of her website available without using any technical tools to block search engines from finding and displaying her works. Consequently, the BGH found that the reproduction of the images as thumbnails did not constitute copyright infringement since Google was allowed to interpret the artist’s behavior as agreeing to such use.

Raidla Lejins & Norcous