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Perfect 10 claimed that by assisting users in locating and obtaining access to third party sites that themselves contained infringing images, Google was guilty of contributory infringement.

Said the Ninth Circuit:  “Google’s failure to change it operations to avoid assisting websites to distribute their infringing content may constitute contributory liability …”.

The District Court was also directed to determine whether Google was immunized from liability for such contributory infringement claims by operation of the Digital Millennium Copyright Act (“DMCA”).  The DMCA immunizes Service Providers such as Google from liability “for infringement [including contributory infringement] of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer or hypertext link,” if the service provider meets certain specified criteria.  The parties disputed whether Google in fact met such criteria, and qualified for the protections of the DMCA.  This issue was left to the District Court on remand.

Google had no contractual or other right to cause such third party websites to stop displaying infringing content.  As such, the Ninth Circuit held, Perfect 10’s vicarious copyright infringement claims were likely to fail.

only delivered html instructions – to wit in-line links – to its users, and not the actual images themselves

a user’s act of “caching” copies of infringing images in his computer as part of his review of such infringing materials was a fair use protected from claims of copyright infringement.