Perfect 10, Inc. v. Amazon.com, Inc. and Google, Inc.

[Editor’s Note: This opinion amended and replaced the Ninth Circuit’s prior opinion at 487 F.3d 701. The prior opinion placed the burden on the plaintiff to show that an affirmative fair-use defense is unlikely to succeed to obtain a preliminary injunction. This opinion places the burden on the defendant to show that its affirmative fair-use defense is likely to succeed.]

Google, Inc. (defendant) operated an internet search engine. Search results for images appeared as thumbnails, i.e., smaller, lower-resolution versions of full-size images. Google also provided users with in-line links to the images and hyperlinks to third-party websites where the full-size images were displayed. Although Google stored thumbnails on its server, it did not store the original, full-size images. Perfect 10 (plaintiff) sold copyrighted nude images. Third-party websites displayed infringing copies of Perfect 10’s images. Google automatically indexed some of those websites and provided thumbnails of Perfect 10’s images in its search results, along with links to the infringing websites. Amazon.com, Inc. (defendant) also displayed Google’s results on its sites. Perfect 10 sued Google and Amazon for copyright infringement, arguing that Google’s thumbnail images and links were infringing. The district court declined to enjoin Amazon but issued a partial preliminary injunction against Google preventing Google from using the thumbnail images. Both parties appealed to the Ninth Circuit.