Google appears to be learning the hard way that there's "kein fairer Gebrauch" (no fair use) in Germany.  The Internet search giant lost two German copyright decisions Monday, as the courts ruled that the thumbnail images that appear in Google Image Search violate German copyright law.  Bloomberg reports:

Google's preview of a picture by German photographer Michael Bernhard violates his copyrights, the Regional Court of Hamburg ruled, his lawyer Matthies van Eendenburg said in an interview today. Thomas Horn, who holds the copyrights on some comics that were displayed in Google search results, won a second case, court spokeswoman Sabine Westphalen said in an e-mail.

"It doesn't matter that thumbnails are much smaller than original pictures and are displayed in a lower resolution," the court said in its ruling for Bernhard. "By using photos in thumbnails, no new work is created," that may have justified displaying them without permission.

Naturally, Google was none-too-pleased by the ruling and plans to appeal, according to PC World.  The company said in an email that it believes "that services like Google Image Search are entirely legal and provide great value and critical information to Internet users."  "Today's decision is very bad for Internet users in Germany," it added.

Of course, if Germany recognized a doctrine of fair use like that in the United States, Google would be off the hook. But according to an article by Wencke Bäsler in the Virginia Journal of Law and Techonology, "there is no general fair use right in the German system. Rather, the German Copyright Act only provides for exceptions and limitations of the authors’ rights in certain circumstances."  Wencke Bäsler, Technological Protection Measures in the United States, the European Union and Germany: How Much Fair Use Do We Need in the “Digital World”?, 8 Va. J.L. & Tech. 13, 23 (2003).

Ms. Bäsler notes several exceptions to infringement liability, but the only one that sounds like it might apply in this case is that for "quotations in the necessary amount for certain purposes." Id.  In a broad sense, that's all Google's doing: "quoting" the images by presenting thumbnails of them.  But if Google's use is not one of the allowed "certain purposes," or if German law means quotations in the literal, textual sense, Google may have a hard row to till.

Nonetheless, it's hard to see how this ruling will be beneficial to German copyright holders in the long run.  Google isn't going to start shelling out royalties for these images.  Rather, as Kevin Smith points out on the Scholary Communications blog at Duke University, the company may simply filter German search results to omit thumbnails that might infringe, which "would ultimately harm business in Germany more than Google."  So while Bernhard and Horn may get some damages out of these rulings, they've also potentially eliminated whatever traffic Google Image Search might have driven to German sites in the future. It's hard to believe that loss outweighs their gain.

(Arthur Bright is a second-year law student at the Boston University School of Law and a former CMLP Legal Intern.)