Grokster Decision Tested

Here we are, just five months after the Grokster decision was handed down, and already it's being called into use as a precedent case. Perfect 10, an adult entertainment company, is suing Google for displaying their images on their image search engine.

Dr. Norm Zada, the founder of Perfect 10, says if unchecked, the ability of search engines to distribute copyrighted material will be "the end of intellectual property in this country." (Didn't a teacher ever tell him hyperbole weakens an argument?)

The search results that display on Google's site do not point to images on Perfect 10's site, but rather to third party websites who are illegally displaying the images. Perfect 10 is suing Google for infringement, and hopes to draw support from the Grokster decision.

It's not very likely that if the courts do rule in favor of Perfect 10, that they will do so on the basis of Grokster. Google clearly does not advertise to infringing users in an attempt to capture their business, nor do they have a business model which implies dependence upon infringing users. These things were at the heart of the MGM v. Grokster reversal. Perfect 10's best ammunition against Google is that Google's image index consists of thumbnail-sized images of all searchable files, and sharing those images could be viewed as infringement.