Does Perfect 10 cut for or against the Google Library project?
You’ve probably heard the news that Perfect 10 won its copyright lawsuit against Google. A U.S. District Court ruled on February 17 that Google’s display of thumbnail images from the Perfect 10 web site is not fair use. I won’t be blogging this story in depth, but I may blog occasional pieces arguing that the case has implications for the Google Library project. Here are two, pulling in opposite directions.
In the New York Times this morning, Edward Wyatt quotes representatives of the Authors Guild and the Association of American Publishers (AAP), who believe the Perfect 10 decision helps their separate lawsuits against the Google Library project. Excerpt:
“I think it takes the wind out of their sails,” Jan Constantine, the general counsel for the Authors Guild, said of the Perfect 10 decision. The guild and the Association of American Publishers brought copyright infringement lawsuits against Google over its Book Search program.Michael Kwun, litigation counsel for Google, disagreed, saying that the case “will affect only searches related to Perfect 10, and will not have any effect on other Google products.”…Allan R. Adler, a vice president for governmental and legal affairs at the Association of American Publishers, said the California court’s willingness to rule against the Arriba Soft precedent under a different set of facts was encouraging to the publishers’ group, as was the judge’s statement that the public benefit of Google’s search engine does not necessarily outweigh the rights of copyright holders.
“Google is going to have a difficult time arguing that there isn’t a marketplace for publishers to license their works” given the Perfect 10 decision, Mr. Adler said.
Neither the Perfect 10 case nor the Arriba Soft case are direct precedents for the Book Search lawsuits, which were filed in Federal District Court in New York. But Mr. Adler said that even if the publishers do not assert that there is currently a market for the few lines of text displayed by Google Book Search, the fact that a market exists for the digital copies created by Google could work in the publishers’ favor.
Ms. Frank agreed. She noted that the judge in the Perfect 10 case further differentiated that case from Arriba Soft by noting that Google’s AdSense program allows it to generate revenue from its search technology.
By contrast, the Electronic Frontier Foundation (EFF) emphasizes the narrowness of the judge’s ruling and the principles within it that support search indexing and even the permissionless display of low-res thumbnail images. Excerpt:
[The ruling] will be remembered as a little bad for Google, but a lot good for the Web….First, the court firmly rejected the notion that in-line linking of images directly infringes a copyright owner’s public display right. That’s a huge victory for the World Wide Web, which has long relied on in-line linking. Had Perfect 10 won on this point, every in-line link could potentially trigger automatic liability unless you got prior permission for the link….Second, the court rejected Perfect 10’s secondary liability arguments. Basically, Perfect 10 argued that because Google “created the audience” for infringing websites, it should be held responsible for the infringements on those sites. Imagine that — because you help someone find a site, you’re held responsible for what happens on that site? That would have been a catastrophe not only for search engines, but for linking generally….Third, the court reasoned that merely visiting a website that includes infringing material does not make you an infringer. When you visit a website, your browser makes a copy of images in its cache. According to Perfect 10, that means every person who views a webpage that includes an infringing image becomes an infringer….The court rejected that argument, pointing out that most people don’t treat their browser cache as a repository for infringing goodies, and concluding that copies made automatically by your browser are probably fair uses. So that’s three major victories for the Web at large. Now what about the bad fair use ruling? While I don’t agree with the court’s analysis, let’s start by examining how narrow it really is. First, the court is not condemning all thumbnails created by image search engines. In fact, the court can’t do that because the Ninth Circuit (whose precedents bind the district court here) has already approved that practice as a fair use in the Kelly v. Arriba Soft decision. So the court’s ruling only tells us that there is a line out beyond Kelly v. Arriba Soft that search engines may not cross. Second, the court did not announce any new fair use legal principles….So the fair use ruling really boils down to one fact-bound question: what distinguishes Google’s thumbnails from Ditto’s (the search engine in Kelly v. Arriba Soft)? Two things, according to the court: (1) Google’s ability to share ad revenues from the infringing sites, thanks to AdSense, and (2) Perfect 10’s deal with Fonestarz to provide low-rez images for cellphones.
source: Does Perfect 10 cut for or against the Google Library project?
