United States District Court, S.D. New York
For Plaintiff: Kenneth L. Doroshaw, Amir H. Ali, Jenner & Block LLP, Washington, DC; Alison I. Stein, Jenner & Block LLP, New York, NY.
For Defendant: David Hosp, Mark S. Puzella, Elizabeth E. Brenckman, Sheryl K. Garko, Fish & Richardson P.C., Boston, MA.
OPINION AND ORDER
DENISE COTE, United States District Judge.
This action concerns a copyright dispute between plaintiff Getty Images Inc. (" Getty" ) and defendant Microsoft Corporation (" Microsoft" ). On August 21, 2014, Microsoft launched a " beta" or test version of the Bing Image Widget (" Widget" ). The Widget enables web developers to link to Microsoft Bing Image Search results and display those results on their webpages. Getty brought suit seeking a preliminary injunction enjoining Microsoft from offering, providing, or otherwise supporting the Widget or comparable technology, on the ground that the display of Getty's images through the Widget constituted copyright infringement in violation of federal law. Oral argument on the motion was held on September 18, and the parties made their final submissions in connection with this motion on October 7. For the reasons stated below, the motion is denied.
The critical facts at issue here are not in dispute. They are largely taken from the declarations and exhibits submitted by Getty and Microsoft in connection with this
motion. Getty provided declarations from Yoko Miyashito, Getty's Deputy General Counsel; Francis J. Aul, a Project Assistant at Jenner & Block LLP, counsel for Getty; Kenneth L. Doroshaw, an attorney at Jenner & Block; Michael Hamrah, Getty's Principal Engineer; Pierce Wright, Getty's Managing Editor for Editorial Content; and Graham Morrison, the Head of Americas/Photos at Bloomberg News. In opposition to this motion, Microsoft has provided declarations from Gautam Vaidya, Microsoft's Principal Development Lead; Philip Greenspun, an expert; and David Hosp, an attorney at Fish & Richardson P.C., counsel for Microsoft.
Getty is one of the world's largest providers of commercial visual content and the leading provider of commercial images online. It supplies imagery, video, and music to business customers for a wide variety of uses, including websites, books, newspapers, magazines, film and television production, advertisements, and product packaging. Getty generates revenue primarily by licensing the rights to use its content. Getty owns much of the content it licenses, and also acts as a distributor for other content suppliers.
Microsoft is a multinational company that develops, produces, licenses, and sells a wide variety of products and services. One of Microsoft's services is the Bing Internet Search Engine which permits users to search for content across the Internet. Like other search engines, Bing uses automated tools to " crawl" the Internet for content. Bing continuously analyzes webpages that it has " crawled" and selects content to be stored and indexed to respond to searches conducted by users of the Bing Search Engine. When the user enters a search term into the Bing search box, Bing's software searches its index for websites responsive to the query and provides the user with a list of results on a results page. One of the search functions available through the Bing Internet Search Engine is Bing Image Search, which permits users to search specifically for images. In creating the index for the Bing Image Search, Microsoft makes a copy of the indexed image by storing a reduced-size, lower-resolution file (" thumbnail" ) on Microsoft's servers in a Thumbnail Library.
On August 24, 2014, Microsoft launched a test version of the Widget. The Widget is a tool that can be used by website developers to display Bing Image Search results on their own websites. The Widget does not provide search functionality directly, but generates the Hypertext Markup Language (" HTML" ) code that allows the developer to import images located through the use of Bing Image Search onto the developer's webpage. HTML is computer code used to tell an Internet browser how to display content on a website.
To use the Widget, a website developer goes to the Bing Image Widget website. The developer then makes selections to customize the results. The website developer will choose what query to run, the number of images to be displayed, and how the results should be displayed. The images are shown in a display panel with the Bing logo across the bottom. The results appear in the same order as if the website developer had run the same query on Bing Image Search.
The Widget has two different modes. In Collage mode, the display panel is populated with small, thumbnail-size images. Using the Widget, the website developer can change the size of the Collage, the thickness of the borders, the space between the images, and the number of images to ...