Google Images unlawful in France?

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Publié le 8 février 2010
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What would you expect when a French court is to rule on a case involving Google? Answer: Nothing good for the American company. You can be certain about one thing: Google‘s legal battles in France are far from over. That prospect is instanced again by a 2009 case in which Google and Au Féminin, an…

What would you expect when a French court is to rule on a case involving Google? Answer: Nothing good for the American company.

You can be certain about one thing: Google‘s legal battles in France are far from over. That prospect is instanced again by a 2009 case in which Google and Au Féminin, an online newspaper aimed at women, have been sentenced in solidum to pay 20,000 € of damages for having reproduced and displayed a photo of the singer/actor Patrick Bruel without the photographer’s authorization.

In this case, the photograph appeared both on the interactive space of « Aufeminin.com » and on Google’s image searching engine. This service indexes and analyzes the images it retrieves from the web and displays them through thumbnails on a result page after a user provides the appropriate keywords in the search field. When the user clicks on a thumbnail, he/she accesses a new Google page that reproduces the particular thumbnail selected, provides the information about the image (size, weight, URL of the image, URL of the web page in which it is embedded, and so on), and frames the web page where the image has been published. Google always provides a link to unframe this web page or to give access to that image.

What is obvious in this process is that Google merely stores on its database the original images found on the web and reduces their sizes so that they can fit the thumbnails. It is also obvious that the search engine presents the web pages where the images are embedded in Google’s URL (by means of the “framing” technique) without any appropriation whatsoever, as Google fully discloses the original URLs and makes it possible to access that page without any frames. It goes without saying that this service is much appreciated by Internet users, conceivably by copyright owners themselves, who can easily retrieve the web pages that may have counterfeited their work.

But here is the issue: by reproducing and displaying photos, Google impinges upon intellectual property rights, particularly those pertaining to the reproduction and the public display rights.

The U.S. courts have dealt with practically identical cases in Kelly v. Arriba Soft Corporation and Perfect 10 Inc. v. Amazon.com, Inc. and Google Inc.

In the first case, Arriba Soft was running a visual search engine, Arriba Vista Image Searcher, which is quite similar to Google Images. By clicking on a thumbnail provided by Arriba Vista, the user could view a window displaying the full-size version of the image along with a description of its dimensions as well as the original web site’s address. Invoking the fair use doctrine, the 9th Circuit Court of Appeals ruled that no intellectual property rights has been violated in this instance. The court considered that: (1) the purpose of creating the thumbnail images as previews was substantively transformative, since it was impossible to view these images in the same level of resolution as in the original artwork; (2) the significance of the photographs’ nature as creative work was effectively abated, since they had already been published; (3) the full replication of the original copyrighted work, though it might seem to have violated the applicable copyright, was actually reasonable and necessary in light of the intended use; and, (4) the creation of the thumbnail would not substantially diminish the market for the original artwork. To sum, the court concluded that the thumbnails were fair use.

In the second case, Perfect 10, the plaintiff is a men’s magazine that operated a website featuring sexually provocative images of women which were indexed on Google Images. In 2006, the district court of the Central District of California concluded that Google’s creation of thumbnails and displaying of Perfect 10’s copyrighted full-size images likely did not fall within the fair use exception*. But on May 2007, the U.S. Court of Appeals for the Ninth Circuit, based in San Francisco, reversed the District Court on appeal. Citing the Kelly case, the appeals court ruled that Google’s use of thumbnails was fair use, mainly because Google converted the use of the images from entertainment and artistic expression to one of retrieving information.

It must be emphasized that there is a glaring difference between the French and Anglo-American rulings on the same issue. While the fair use doctrine – part of the American copyright law – allows the reproduction of an original work without permission once it has undergone a significant change, the French doctrine of the moral right of the author flatly condemns any modification of that work. French law certainly acknowledges some limitations and allows for some exceptions to copyright, such as short quotations made for the critical, argumentative, scientific or informational purposes about the original work. But the Google Images service hardly falls within the framework of this exception. Indeed, the French Supreme Court (“Cour de cassation”) squarely refuses to apply it to visual and graphics art (Cass. Civ 1, 13 November 2003, Utrillo; Cass. Civ. 1, 25 January 2005, Delaunay).

Surprising in the face of these circumstances, in a former French case ruled two years ago (Paris TGI, 20 May 2008, SAIF v. Google France and Google Inc.), the French court found that the U.S. Copyright Law would be directly applicable in this conjunction via Article 5-2 of the Berne Convention. By means of that reference, the Paris court effectively invoked the fair use doctrine, ruling that Google Images did not violate any rights claimed by the plaintiff, the SAIF, which represented the affected photographers collectively. In support of its argument, the court held that:

1) The Google search engine is a tool that searches, references, and indexes all the information circulating on the web; in this case, the search engine Google Images performs this operation on all information regarding images of any sorts. Specifically, it searches, identifies, and references images in their own context by associating them with applicable keywords and allowing Internet users to retrieve them. Google does not operate independently of the images it indexes, hence this process effectively meets the definition of cultural activity.
2) Reducing the image to the size of a thumbnail and presenting it in a level of resolution worse than that of the original image should be viewed not as a distortion, but rather as a mere conveyance of the necessary information to users, who would still have to go to the website listed under the photograph if they would want the same image in a higher resolution. As such, this activity only serves the users’ needs. Furthermore, Google does not store these images. Its service consists merely of a “caching” operation, which, by anchoring and improving the fluidity of a particular data’s transmission, makes the data temporarily available on the network Internet users tune in.
3) The indexing of images found and presented by the search engine Google Images as thumbnails neither replaces the artworks themselves nor does it prevent their creators to harvest the fruits of their creativity.

However, this decision constitutes a unique case in French jurisprudence in that a local court has applied the U.S. Copyright Law and the fair use doctrine in the very land of the Right-of-the-Author. Indeed, in the Au Féminin case the Court entirely disregarded the fair use concept and applied the traditional French law, referring to the “classic” criterion of the locality in which the injurious event has occurred. That makes all the difference between the two French court decisions, with the Google case, squarely holding the American company liable for counterfeiting. Furthermore, the court threw out Google’s argument that it had immediately removed the photograph upon notice. This initiative would have exempted Google from liability had it qualified as a hosting provider. Unfortunately for Google Images, the provider of this service would not meet the definition of a hosting provider under the French and European laws, which strictly applies to the “storage of information provided by a recipient of the service”. The court additionally charged Google for violating the photographer’s moral rights specifying that presenting this work without mentioning the name of the author simultaneously violated the author’s attribution right and undermined the integrity of the original work owing to the lower resolution in which the image was presented in the thumbnail.

This decision does not reflect a misconception on the part of French magistrates about the way the Internet actually functions: they merely apply the applicable codified law. It reflects a more sweeping viewpoint of French law to the services provided by Google. So, yes, when a French court is to rule on a case involving an Internet service provider, say Google, you should not expect anything good for that enterprise.

Lionel Thoumyre
Consultant on liability issues in the Digital Economy
Lecturer at Paris I – La Sorbonne
Founder of Juriscom.net

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* For a French analysis of the Perfect 10 case (2006), see: V.-L. Benabou, PI, April 2008, n°27, pp. 241-244.