This is the original case brought against Google. It both supports and rebuts my thesis. The decision was not a full victory for Perfect 10, but compared to the appeal, it was more successful. I will use this case to point out the flaws in the decision and to contrast Google's argument with the appeals case. Just like the case in the Court of Appeals, this case focuses on the question: "does a search engine infringe copyrighted images when it displays them on an "image search" function in the form of "thumbnails" but not infringe when, through in-line linking, it displays copyrighted images served by another website?"
Perfect 10 moved for a preliminary injunction against Google and Amazon solely based on copyright claims. They wanted to prevent Google and Amazon from displaying thumbnail copies of their copyrighted images and also from linking to the third-party websites that host the infringing images. The court decided that Google's use of thumbnails likely do directly infringe Perfect 10's copyright. They also decided that Perfect 10 will likely not succeed with its vicarious and contributory liability theories. Just like the appeal, this case goes pretty far into the details of both Google and Perfect 10, as wells as the charges and how the charges either apply or do not apply.
In the charge of direct infringement, Google defends themselves by arguing that many of its actions do not infringe upon any of the exclusive rights granted to the owner of a copyright, and to the extent that its actions do implicate those rights, such use is fair according to Fair Use. The court rejects the Fair Use argument partly. They state that Google's use of the thumbnails is commercial and thus against the first part of Fair Use. In my paper, I will argue against this decision because an overwhelming majority of Google's commercial gain from thumbnails is not copyright infringement. They state that Google's use is very transformative and that their use no greater than necessary to provide their goal, which is providing effective image search capabilities. These assessments show that the Court believed that Google was compliant with the second and third factors of Fair Use, and agrees with my thesis. They argue that Google's images likely do harm the potential market for Perfect 10. This would mean that Google infringes upon the fourth and final factor of Fair Use. I disagree on the grounds that Google is not even creating these images and thus the burden falls upon the people downloading the images.