The First Civil Senate of the Federal Court of Justice (BGH), which is responsible for copyright law among other things, has again 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 posted on the Internet in connection with the search term by entering search terms. The images found by the search engine are shown in a list of results in reduced form as thumbnails. The thumbnails contain an electronic link that takes the user to the website with the reproduced image.
The plaintiff is a photographer. In December 2006 and March 2007, the images of a photograph of the television presenter Collien Fernandes taken by the plaintiff were displayed as thumbnails in search queries. The location of the images was given as two specified internet sites.
The plaintiff argued that he had not granted the operators of these websites any rights of use to the photograph. He filed a claim for injunctive relief against the defendant for copyright infringement, among other things.
The district court upheld the action. The court of appeal dismissed the action. The Federal Supreme Court dismissed the plaintiff's appeal.
Last year, the Federal Court of Justice ruled that an author who posts an image of a work protected by copyright on the internet without taking technically possible precautions against this image being found and displayed by search engines declares his or her consent to the reproduction of thumbnails of the image by conclusive conduct and that the encroachment on the right to make the work publicly accessible (Section 19a UrhG) that this constitutes is therefore not unlawful (BGH, judgment of 29 April 2010 - I ZR 69/08. April 2010 - I ZR 69/08, BGHZ 185, 291-Vorschaubilder I).
In the decision handed down on 19 October 2011, the Federal Court of Justice clarified that such consent, which excludes the illegality of the infringement of copyright, also exists if an image of a work has been posted on the internet by a third party with the consent of the author without any protective measures. In the case in dispute, the plaintiff had argued that he had not granted any rights of use to the operators of the websites on which the thumbnails of the photograph were posted. However, in the opinion of the Federal Court of Justice, this was irrelevant. The plaintiff had in fact granted third parties the right to make the photograph publicly accessible on the internet. According to the Federal Court of Justice, the consent to display in thumbnails validly declared by a third party with the consent of the author by placing images of the work on the internet is not limited to the display of images of the work placed on the internet with the consent of the author. It is common knowledge that search engines, which search the internet for images in an automated process, cannot distinguish whether an image found has been posted on the internet by an authorised person or a non-authorised person. Therefore, the operator of a search engine can and may understand such consent as extending to the display of such images in thumbnails that have been posted on the internet without the consent of the author. However, the author is at liberty to bring a claim for copyright infringement against those who have placed these images on the Internet without authorisation.
Judgment of the Federal Court of Justice of 19 October 2011 - I ZR 140/10 - Vorschaubilder II
Lower courts:
LG Hamburg - Judgment of 26 September 2008 - 308 O 248/07
OLG Hamburg - Judgment of 23 June 2010 - 5 U 220/08
Source: Press release of the BGH
Goldberg Attorneys at Law 2011
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
