The Google Image Search
Analysis of the court decision by the German Federal Court of Justice
Federal Court of Justice, April 29th, 2010
Sebastian Kolla, Sascha Klein, Gatis Cers, Haroon Shafique
The amount of available information on the internet has increased enormously throughout the last decade. Accordingly the search engines have improved and enhanced their features as well. One of these features is Google´s image search which was implemented in 2001. These search engines are an easy way to illustrate images; nevertheless on the downside some copyright law issues occur.
The dispute discussed is concerning the lawfulness of image search engines in Germany and was submitted to the Federal Court of Justice (Bundesgerichtshof). Prior to that the regional court of Thuringia in Jena rejected the plaintiff´s appeal from first instance in February 2008.
With this appeal the plaintiff sustained her demand for relief.
The plaintiff is a visual artist. She maintains her own internet website on which she posts her works of art.
The defendant is the well known search engine provider Google who operates an image search function as well. The search function helps users to find images third parties posted on a website. Google uses the so called thumbnails, small pixelized versions of the original image to display the located images and present them to the user.
These thumbnails include a deep-link leading to the website which contains the demanded image. The localization of the images is carried out by special software. So called “crawlers” or “robots” search the internet on a regular basis in order to find any image data sets. Thereafter the images that are found are stored in a data bank and converted into the earlier mentioned thumbnails. The thumbnails are stored by the defendant on servers in the USA in order accelerate the whole search.
It is an important fact that the search process is not carried out by entering the search word. In fact Google only provides a hit list with the most matching images stored on their servers. The storing itself is already a copyright infringement.
After the plaintiff googled her own works of art in 2005 she objected to the presentation of her works in the search hit list. She argued that the search engine infringed her copyright, especially her right of making the works available to the public.
The defendant however opposed the civil action. Google countered the hit list is not a use of the work. In addition to that a copyright infringement would not be present since the legal regulations on limitations and exceptions according to Art. 44a et. seq. CA (Urheberrechtsgesetz) would permit image search engines.
The regional court of Thuringia dismissed the action. Although the court argued that the any law suit would be contradictory since Google did not fulfill the elements of making the works available to the public by storing the thumbnails on their servers.
This argumentation is supported by the fact that the plaintiff herself posted the images on the website and therefore controls the initial act of making available to the public.
In the court´s view the use of the images in search engines is legal due to consent.
It was stated by the Federal Court of Justice that the Plaintiff could have taken simple technical measures that would have stopped the defendant from indexing her site and by not doing so the defendant was given implicit consent to post the thumbnails on their website. The Federal Court's judgment further states that under Article 19(a) of the Copyright Act, it cannot be said that the Defendant has committed an unlawful act by making the content available to the public.
The other main point made by the Federal Court was regarding third parties and copyright infringement. It was state that even if third parties publish someone else's images which appear on search engines, they cannot be held liable unless the search providers were informed of the copyright infringement. The basis for this was the Electronic Commerce Directive (2000/31/EC), in particular Article 14(1). Article 14(1) states that the information provider cannot be held liable for illegal activities and circumstances that they are not aware of. However, on awareness or knowledge of such activity they should try “to remove or disable access to the information. ” In the Google France/Louis Vuitton case the main test given for assessing whether the liability of a service provider can be limited under Article 14 of the Electronic Communications Directive depends on whether the role played by the search provider is basically “technical, automatic, and passive” in its nature and when it cannot provide control or knowledge of the information stored or transmitted. In addition, the search provider can only he held liable if they have knowledge of the illegal information.
 BGH K&R 2010, 501; I ZR 69/08.
 OLG Jena, K&R 2008, 301.
 Fromm/Nordemann - Dustmann, § 19a, Rn. 22; Schrader/Rautenstrauch, UFITA 2007, 761 (761).
 Paragraph 36.
 Paragraph 33.
 Paragraph 39.
 Paragraph 39.
 Directive of the European Parliament and of the Council 2000/31/EC of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (2000) OJ L178/1
 Paragraph 39.
 Paragraph 39.