Microsoft has taken down the beta version of its new Bing Image Widget following a copyright infringement suit brought by Getty Images, an owner and distributor of a massive collection of digital works available on the Internet. According to the papers filed by Getty, the Bing Image Widget, which launched in late August and was already in use on websites throughout the world, allows users to create a display panel of digital images (in collage or slideshow format) collected through a customized search using the Bing Image Search Engine. The panel may then be embedded on a user’s own website in a manner that “masks the third-party source” and creates “the appearance that the image is instead coming from the Bing-branded display panel.” The images collected by the Bing Image Search Engine, and later included in the user panel, include copyrighted images owned by Getty. According to Getty, the use of the Widget to collect and display copyright-protected images constitutes “brazen” copyright infringement, “and the scope of that infringement is staggering.”
As is the case with all new technologies, the Court will be tasked with extrapolating from and analogizing to existing technologies and case law to develop a framework within which to analyze the propriety of the Widget. Although no opposition has been filed, Getty’s papers in support of its motion for a preliminary injunction provide an anticipated roadmap for some of the arguments Microsoft may make in opposition to Getty’s claims, including fair use, reliance on the “server test” adopted by the Ninth Circuit in Perfect 10, Inc. v. Amazon.com, Inc., and sourcing issues that may implicate the Supreme Court’s recent decision in American Broadcasting Cos. v. Aereo, Inc. The case may also involve aspects of the Digital Millennium Copyright Act and the current law on “linking” and “framing” (a topic which will be discussed as part of our IP Law Outlook series on social media promotion). An emergency hearing on Getty’s requested injunction is set for September 17 in the Southern District of New York. We’ll be watching this case to see how these legal issues unfold.