Google has won what appears to be a major legal victory in German (and so probably the rest of Europe) on the question of whether image search and showing thumbnails violates copyright law. The Google European Public Policy Blog succinctly describes the facts and holding:
We are heartened by the German Supreme Court´s ruling today that Google Image Search does not infringe copyright. The case was brought to court by an artist who had uploaded photos of her work (large paintings) to her own website. She then claimed for copyright infringement against Google as the images were displayed in our image search results.
This holding and policy will probably be adopted by other European courts. In the US Google has successfully defended against similar claims under the “fair use” doctrine in the past.
In addition, Google has apparently won a trademark case involving AdWords and the educational company Rosetta Stone (which sells language learning software and courses). The case involved Rosetta Stone’s claim (made by others in the past) that the use of its trademarks as “keyword triggers” infringed trademark law and confused consumers.
The judge granted what’s called “summary judgment,” which ends a case before trial. However an opinion has not been issued yet.
Summary judgment is granted in a lawsuit when, if all the facts in the case are assumed to be as the other side argues, there’s still no legal claim. In other words, the judge is saying: even though AdWords keywords invoking Rosetta Stone’s trademarks were used and competitive ads were shown as a result consumers weren’t likely to be confused and there’s no violation.
News agency AFP quotes Google on its rationale for allowing this, which infuriates many advertisers (hence the lawsuits):
“We allow trademarks to be used as keyword triggers in AdWords because users searching on Google benefit from being able to choose from a variety of competing advertisers,” said Google spokesman Andrew Pederson.
“Just as it’s reasonable to expect a range of brands on any shelf in a grocery store, providing users on Google with more than one option when they search for a brand name or other trademark helps them to find the best product at the lowest price.”
All true and useful in many respects for consumers. However the policy also creates a more competitive bidding environment and forces advertisers, in effect, to continue bidding on their brands and trademarks “defensively.” The decision excuses Google from having to police use of trademarks in AdWords, which would be a huge headache other than in the current “notice and takedown” context.
Rosetta Stone can appeal the decision and potentially have its case reinstated but I will speculate it’s unlikely to prevail on appeal. This decision and the subsequent legal opinion could put the “competitive use of trademarked keywords” question to bed in the US. We’ll see.