On 29 April 2010, the German Federal Supreme Court (Bundesgerichtshof, BGH) handed down a decision that Google is not liable for copyright infringement for displaying copyright protected works as preview pictures (or thumbnails) in Google’s image search results.
The claimant in the proceedings is an artist who maintains a website that displays her works. She alleged that Google had displayed her works as thumbnails whenever her name had been entered as a search term into Google’s search engine.
Google’s internet search engine includes a text driven image search which displays scaled down thumbnails as well as a link to the website which displays the original picture. Google enables this function by searching the internet in regular intervals for images and then stores these images on its own servers, making it possible for prompt display of preview pictures after a Google image search.
In the proceedings, the lower courts decided in Google’s favour, but the appeal court found that Google was infringing the claimant’s copyright in her works. However, on further appeal, the BGH took the view that Google did not infringe the artist’s copyright. The BGH was of the view that, although the claimant did not make a legal declaration in which she authorised Google’s use of her works as preview pictures via the Google image search function, the reproduction of the images as preview pictures was not unlawful as Google could interpret the claimant’s actions as consenting to the display of her works in Google’s image search results. This is because the claimant had made the content of her website accessible to search engines and had not made use of the technical possibilities available to her to except her works from being searched and displayed by search engine providers.
This decision serves as a warning to website owners to take measures to protect the content displayed on their websites.