Google not liable for copyright infringement through image search

The First Civil Senate of the Federal Court of Justice (BGH), which is responsible for copyright law among other things, has ruled that Google cannot be held liable for copyright infringement if copyrighted works are reproduced in thumbnails of its search engine.

The Internet search engine operated by Google has a text-controlled image search function with which one can search for images that third parties have placed on the Internet in connection with the entered search term by entering search terms. The images found by the search engine are shown in the hit list as thumbnails, which are smaller and have fewer pixels than the images on the original pages. The thumbnails contain an electronic link that takes the user to the website containing the corresponding image. To shorten the search process, Google searches the Internet at regular intervals for images and keeps them on its servers as thumbnails so that the hit list with the corresponding thumbnails can be displayed a short time after entering a search word.

The plaintiff is a visual artist and maintains her own website on which images of her artworks are posted. In February 2005, when entering her name as a search term in the defendant's search engine, images of her artworks were displayed as thumbnails.

The lower courts dismissed the plaintiff's action for injunctive relief. According to the Court of Appeal, the defendant had unlawfully infringed the plaintiff's copyright. However, the assertion of the claim for injunctive relief was abusive of the law (§ 242 BGB).

The Federal Court of Justice dismissed the plaintiff's appeal. It assumed that the defendant had not already committed an unlawful copyright infringement. In agreement with the findings of the Court of Appeal, the Federal Court of Justice assumed that the plaintiff had not granted Google a right to use its works as thumbnails in the context of the image search by means of an express or implied legal declaration. However, the encroachment on the plaintiff's right to make its works publicly accessible (Section 19a UrhG), which lies in the reproduction in thumbnails, is nevertheless not unlawful because the defendant was entitled to infer from the plaintiff's conduct (even without a legal transaction) that the plaintiff agreed to the display of its works in the context of the search engine's image search. This is because the plaintiff made the content of its website accessible for access by search engines without making use of technical possibilities to exclude the images of its works from the search and display by image search engines in the form of thumbnails.

For cases in which - unlike in the case now decided - the images found by the search engine and displayed as thumbnails have been placed on the internet by persons not authorised to do so, the Federal Court of Justice has pointed out that, according to the most recent case law of the Court of Justice of the European Union, search engine operators may, under certain conditions, avail themselves of the limitations of liability for providers of information society services under Directive 2000/31/EC on electronic commerce (ECJ, judgement of. 23.3.2010 - C-236/08 to C-238/08 para. 106 et seq. - Google France/Louis Vuitton). According to this, liability of the search engine operator would only come into consideration once it has become aware of the illegality of the information stored by it.

 

Judgment of the Federal Court of Justice (BGH) of 29 April 2010 - I ZR 69/08 - Preview pictures

Lower courts:

LG Erfurt - Judgment of 15 March 2007 - 3 O 1108/05

OLG Jena - Judgment of 27 February 2008 - 2 U 319/07, GRUR-RR 2008, 223

 

Source: Press release of the BGH

 

Goldberg Attorneys at Law

Attorney at Law Michael Ullrich, LL.M. (Information Law)

Specialist lawyer for information technology law (IT law)

E-mail: info@goldberg.de

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