Thumbnails non infringing

06 September 2006

Dr Alexander Duisberg, Dr Henriette Picot

(District Court of Bielefeld, 8 November 2005, 20 S 49/05)

In a final and binding decision that might strengthen the business in internet search engines, the District Court of Bielefeld ("LG Bielefeld") held that displaying a "thumbnail" (i.e. a greatly minimised copy) of a copyright image that has been posted on the internet without authorisation does not inflict any recoverable damage on the copyright owner. In its reasoning, the LG Bielefeld evidently assumed that, as a rule, displaying a thumbnail of a copyright image is not copyright-infringing if and to the extent to which the copyright owner has consented to the posting of such image on the internet at all. Albeit only between the lines, the LG Bielefeld thus confirmed the increasingly held opinion that the copyright owner's consent to publish a copyright image on the internet generally implies the copyright owner's consent to the creation, storage and display of thumbnails by internet search engines.

The LG Bielefeld ruled that if a copyright image has been published on the internet without authorisation (hence unauthorised), a display of a thumbnail of such image does not inflict any recoverable damage on the copyright owner. Under German law, a typical way of calculating the recoverable damage in case of a copyright infringement would be determining how much a reasonable licensor could have demanded from its licensee under identical circumstances. Applying this calculation method, the LG Bielefeld held that, under common business practice, the act of including a thumbnail into an internet search engine does not necessarily trigger any license payment at all. The LG Bielefeld therefore concluded that, as a rule, a copyright owner does not suffer any demonstrable pecuniary loss from the unauthorised display of a thumbnail among the results of an internet search engine. Also, the LG Bielefeld doubted that providers of internet search engines act negligently (which under German law is a necessary requirement for recovering damages from copyright infringement), if they do not verify the content contained in their search index with respect to its copyright status. As a consequence of this view, providers of internet search engines do not run the risk of exposing themselves to claims for damages when displaying thumbnails of copyright content without verifying whether such content has been posted with the copyright owner's consent. However, the copyright owner's right to claim that any unauthorised display of a thumbnail be immediately stopped remains unaffected.

In this context, it is worth briefly mentioning a recent US decision on a similar issue - made under US copyright law (District Court of Central District of California ("US District Court"), 17 February 2006 Perfect 10 v. Google, Inc., CV 04-9484 AHM (SHx) – appealed by both parties): The US District Court held that search engine provider Google's public display of thumbnails in its search results was likely directly to infringe the copyright in the content concerned, ruling that such use of copyright content, even taking into account the enormous public benefit of search engines, did not fall under the fair use exception. In its judgment, the US District Court apparently did not consider decisive whether the thumbnailed content had been posted on the internet with or without authorisation. Although sharing the basic assessment that the public display of a thumbnail could constitute a copyright infringing act, the views of the US District Court and the LG Bielefeld lead to different practical results: unlike the US District Court, the view of the LG Bielefeld is that posting a display of a thumbnail where the full-size image has been posted on the internet with the copyright holder’s authorisation will not give rise to an infringement as the copyright owner's implied consent to the display of thumbnails is assumed to have been given. Where the copyright holder’s consent to the display of the full-size issue has not been given, the LG Bielefeld rejects the possibility of a recoverable loss.

Given the multitude of items contained in an internet search index, the LG Bielefeld's reasoning and results obviously correspond to practical as well as economical realities and needs. Moreover, the negligible degree of infringement caused by the unauthorised display of a thumbnail – considering, in particular, that such minimisation normally results in strongly reduced quality - makes the view of the LG Bielefeld eminently sensible. Nevertheless, it remains to be seen whether other German courts will follow this decision.