The ruling comes after Adult website Perfect 10 sued AOL Germany, which has a search function powered by Google, for showing thumbnails of infringing Perfect 10 images that had been published illegally.
Certain parts of Perfect 10’s content can only be accessed by registered users after paying a fee, but some of this content was posted online to freely accessible websites. If the correct terms were searched, AOL’s image results would show the thumbnails of the infringing images and link to the website the image was published on.
In the court case, Perfect 10 claimed that it was owed damages from AOL for copyright infringement, however the court disagreed, and ruled that AOL did not infringe Perfect 10’s copyright by merely displaying thumbnails of the photographs.
In its ruling, the German court referenced the Court of Justice of the European Union’s decision in GS Media v Sanoma in September 2016, which held that it is not infringement of copyright to hyperlink to work published online without the copyright owner’s consent, as long as the link was not posted for profit and the linker did not have knowledge that the work was originally published legally.
According to the court, an assessment of infringement is based on the assumption that the person places the links with the intent to make a profit. However for AOL and, by extension, Google, this is not the case due to the particular importance of internet search services for the functionality of the internet.
It ruled that the provider of a search function should not be expected to check whether the images found by the search engine in its automated procedure have been legally posted before they are presented as a preview.