by Nancy Wolff, DMLA Counsel  

Getty Images (US), Inc. v. Microsoft Corp., No. 14CV7114 DLC, 2014 WL 5285697 (S.D.N.Y. Oct. 16, 2014)

In late August Microsoft launched a test version of a new service called Bing Image Widget which allows website publishers to embed a panel on their website that displays images supplied by Microsoft’s Bing Image Search that would enhance the user’s website experience.  The Bing Image Widget search prompted an automatic tool that “crawled” the Internet for any content that Microsoft could find, whether the crawled site had permission to use the images. The images were displayed in collage mode comprised of small, thumbnail-sized images or slideshow mode displaying full-sized images that rotated every few seconds. The thumbnail images were copied and indexed and then stored in a Thumbnail Library on Microsoft’s servers including code that displayed the full-sized images by an in-line link to an originating website’s server.

As mentioned n a prior post, http://blog.pacaoffice.org/?p=2242, many PACA members, as well as other associations (Specifically ASMP and CEPIC) were concerned that this widget could be used to replace legitimate licensing and contacted Microsoft to discuss the widget and industry concerns. Prior to any response  to the Associations from  Microsoft, Getty Images, who had earlier this year released an embed tool to promote “responsible image sharing”   http://infocus.gettyimages.com/post/new-embed-lets-you-share-tens-of-millions-of-images#.VFfluTTF8YZ]  filed a motion seeking preliminary injunction against Microsoft. A motion for preliminary injunction seeks to compel the allegedly infringing party to immediately cease use, and is granted where a party faces “irreparable harm” by the continued use. That same day, Microsoft immediately disabled the Widget and a few days later communicated to Getty Images that Microsoft was willing to “commit to not re-launching the Widget during the pendency of the lawsuit except as redesigned to display public domain or licensed images.” [Although, it wasn’t until almost two weeks later that Microsoft disabled the Widget for those that were still able to use the code generated prior to Microsoft’s disabling of the Widget.]

Due to Microsoft’s “prompt disabling” of the Widget and their assurances that it will not re-launch the service until the pending copyright infringement action is decided, the Southern District of New York denied Getty’s motion seeking preliminary injunction against Microsoft. It is important to note that this decision does not mean that Getty Images’ copyright infringement action against Microsoft is dismissed. Rather, the Court held that Getty Images did not meet the requirements for obtaining a preliminary injunction because Microsoft had already discontinued use of the Widget on its own.

PACA/Digital Media Licensing and ASMP did eventually have a conversation with Microsoft where it stated that due to ongoing litigation, it could not discuss the case, but that the Bing widget was disabled and there was no intention of launching the current Bing Widget in the future.  We offered to be available to discuss image embedding and search and in particular anything that would not encourage licensing of images from the original source. We discussed the  industry’s effort to increase image information through the PLUS registry and encouraged Microsoft to learn more about the PLUS coalition.

Elaine Vitt