An artist sued Google in Germany because thumbnail images of her pictures appeared when her name was entered into Google's search engine. The pictures were taken from her own website.
The Court said that Google's display of the images was not copyright infringement because the artist had not used a simple technical measure to stop Google indexing her site.
The Federal Court agreed with two lower courts that Google should be allowed to use small versions of the images in its search service. Both lower courts had said that copyright was infringed, but in a way that was justifiable.
The Federal Court ruled, though, that the use of the images was not copyright infringement in the first place because the artist had effectively consented to the use of the images.
According to an automatic translation of a Court press release and a translation by intellectual property specialist Birgit Clark, writing on The IPKat intellectual property blog, the artist had not explicitly authorised the use of her works.
But she had not blocked her website from being indexed by search engines, which gave Google the implied permission it needed to use her images.
Search engines 'crawl' the web's sites and make temporary copies of content to improve the performance of their search engines. Site owners can use 'disallow' commands in the website's code to tell search engines not to index some or all of their pages or specific file types. Google's crawling program, known as 'Googlebot', will ignore images if it a site owner has used the 'disallow' command for images.
Because this command had not been used on the artist's site, the Court said that she had effectively made her works available for Google to use.
The Court said that in cases where a person's images appeared in Google searches because they had been published online by third parties without the artist's permission, Google would only be liable if it was informed of the copyright infringement and did not act. The E-Commerce Directive protects service providers from the illegal acts of their users until companies are told of illegal activity.
Google had previously lost two German cases over the appearance of thumbnails of artists' works in its image search service. In 2008 it said it was appealing the cases of photographer Michael Bernhard and artist Thomas Horn, against whom it had lost cases.
The artist in this week's case was not named but it is likely to be a third case because the grammar of the Court's materials indicate that the artist is a woman. Her case was begun in 2005 so it is unclear if this ruling will also lead to a finding for Google in the other cases, which were begun later.
Google fought and eventually won a protracted court case on the issue of copyright in its thumbnails in the US where nude photographs publisher Perfect 10 claimed that the appearance of images in Google's search results infringed its copyright.
The US Court of Appeals for the Ninth Circuit said that Google's copying and display of the images qualified for protection as 'fair use' of the material.
Under US copyright law, a 'transformative use' of a work can be a fair use, i.e. where a work is put to a use completely different to that of the original.
The Court said that in the case of Google's search technology the use was sufficiently different to qualify. "A search engine provides social benefit by incorporating an original work into a new work, namely, an electronic reference tool," said the ruling.