The Legacy of Perfect 10 Websites

The Legacy of Perfect 10: Websites that Use In-line Linking and Thumbnails to Bring Third Party Content to Users Can Avoid Suits for Direct Copyright Infringement

I have recently had a number of discussions with website operators that bring audio, video and other content to their websites via “in-line” linking, about whether this practice violates copyright laws. In-line linking is a form of hyperlinking that permits a host website to incorporate images and other materials from other websites into the host website. The HTML in the “in-line” link directs the user’s browser to retrieve a linked-to image from a source website and display it on the user’s screen — all without leaving the host website.

Typically, the linked material appears on the user’s screen in a “frame” — surrounding material from the host website. In many cases, a shot of the opening frame (in the case of video clips) or a diluted version object itself (in the case of photographs) will be used as a “thumbnail,” which the user will click to activate the hyperlink. This technology has been used in Google’s image search function and in social networking and affinity sites, among others.

“In-line” linking and “framing” have often been criticized by the owners of the source objects. For example, in many cases, the “frames” on the host website will cover over advertising and trademarks of the source website. This reduces the ad revenue stream that the source website may have counted on to pay for the content. It is also often claimed that the creation of thumbnails reduces the demand for cell-phone downloads of images.

So do in-line linking, framing and the use of thumbnails violate copyright laws? In many cases — as the legacy of series of decisions in the Perfect 10 case — the answer will be “No.”

Perfect 10 is a media company that distributes photographs of female models through its magazine, website and via cell-phone downloads. Because it exists on the internet, it was covered by Google’s search text and image engines. Google image searches would recover Perfect 10 photographs, which would be displayed as thumbnails on Google’s site. When a user clicked on the thumbnail, “his computer would pull up a page comprised of two distinct frames, one hosted by Google and a second hosted by the underlying website that originally hosted the full-size image.” Perfect 10 v. Google, Inc., 416 F.Supp.2d 828 (C.D. Cal. 2006).

The Google frame, at the top of the screen, stated that the thumbnail “may be scaled down” and that the Google frame was not the context in which the picture was originally found. The Google frame also gave the URL of the source of the picture, although often in truncated form. The thumbnail was created by Google from the original photograph and existed on Google’s servers. While the essence of the image could be viewed, thumbnails typically eliminated over 97% of the pixels in the original image. Id. at p. 847, n. 13.