In a judgment handed down yesterday, the Bundesgerichtshof (BGH) confirmed and expanded its position on Google thumbnails. In last year's 'Vorschaubilder' (preview pictures) decision (BGH I ZR 69/08, see Birgit's IPKat post here), the BGH held that Google's image search service does not infringe copyright in the pictures shown as 'thumbnails' in the search results. Since the copyright owner in that case put the pictures on the web and failed to take any steps to prevent them from appearing in Google's image search (which I understand is easy to do), she was deemed to have granted an implied licence for the pictures to be made available to the public by appearing in Google's image search results.
Now the court went a step further. The factual scenario was as follows: The copyright owner, a photographer, gave permission to someone else to make one of his photographs available on the Internet, presumably without requiring to take technical steps to prevent the photograph from appearing in Google's image search results (the written judgment is not available yet, and the press release is not entirely clear on this). Third parties then copied the photograph and made it available on their own websites. Google image search results then showed the photograph linking to the third parties' websites. The copyright owner complained and later sued Google, but to no avail.
The BGH considered that a search engine cannot distinguish pictures made available with the copyright owner's permission from those made available without the copyright owner's permission. It concluded that since the copyright owner gave someone permission to make his work available on the Internet, he is deemed to have given Google an implied licence to use the work in its image search service no matter what, even if the source of the preview picture is a website whose operator is in breach of copyright for making the work in question available.
Very kindly, though, the BGH pointed out that the copyright owner is free to sue those for copyright infringement who unlawfully made the images available on the Internet. Times were when one might have thought that would go without saying...
I agree that Google did not infringe copyright, but I confess to being confused nonetheless. If the third parties made the photograph available on their websites without permission and are thus infringing copyright, why is Google upon notification of the copyright owner not required under the principles of 'Störerhaftung' (secondary liability for contributing to someone else's breach of rights) to remove the photograph from its image search service as far as those websites are concerned? Surely it must be possible to exclude the third parties' websites from the image search while keeping the thumbnail from the website of the legitimate licensee?
Any comments by our dear readers would be very welcome.