This source is a blog which highlights several opinions on the decision. Some agree with my thesis while others disagree. I will use the supporters as examples to prove my thesis and will rebut the opinions of the dissenters. William Patry offers the opinions in the first two blog entries on the page. Both are highly critical of the Court's decision in favor of Google. First he points out that if you tally up the factors, Google received none and Perfect 10 received three, according to him. This argument is highly flawed because it was actually 2-1 in favor of Google according to the case. The second argument stated that the Court erred in its assessment of Google as "consumptive." The case has a good explanation for why this is their opinion and it seems valid.
John Ottaviani argues that using Copyright Law from the 1970s is not very relevant for this type of technologically-based case. He fails to realize that it is the concept of what is copyright that has carried over for that long of a time. Copyright law would have changed had it not been working. They also used contemporary examples in the decision. C.E. Petit argued against the first and fourth factors of Fair Use. She argues that they are very similar and will almost always favor the same side. According to her, the judge used the same facts for each factor and that they are likely being double counted. She is probably right that these factors overlap and more than they should. They should, however count for more because of how important they are to Fair Use. The similarity was likely on purpose.
Martin Schwimmer wrote, "The thought occurs as I read this section that Google makes this go away by cropping a corner off the thumbnail (or perhaps reproduces thumbs using sepia tone)." This is amusing, but at the same time, it makes a very good point. Much of the argument centers on whether or not the thumbnails are the same as the image. Removing a corner would actually resolve this argument. It would not change the function of the thumbnails. This shows me that the argument is being over thought and that thumbnails shouldn't be considered the same. If such a small alteration can change an opinion that greatly, then it should not even need to be done.
The A&M Records, Inc. v. Napster, Inc. case is cited several times throughout the Perfect 10 v. Google case and many of the decisions made in this case are vital to the outcome of the Google case. First of all, the District Court's decision to grant a preliminary injunction for an abuse of discretion originated with the Napster case. Also, the Napster case is similar because they both stress copyright infringement and had trial de novo, or new trials with a different decision maker. For my paper, I can look at the examples from the Napster case which were cited in the Google case. Regardless of whether or not they support my thesis, I can analyze whether or not these aspects should be part of decision making in copyright.
Preliminary injunctive relief is available to a party that demonstrates either that they have "a combination of probable success on the merits and the possibility of irreparable harm" or "that serious questions are raised and the balance of hardships tips in its favor." These conditions were outlined in the Napster case and used as criteria in the Google case. In the Napster case, this meant that A&M Records had to show that Napster's program for file sharing could cause irreparable harm to their copyrighted works or that it at least tips the burden towards A&M Records to stop the infringement of the illegal downloading. In the Napster case, these conditions are very clear and seem to be a very necessary assessment to make in cases of copyright infringement.
These conditions were used in the Google case and according to the Court's decision, support Google's argument. This was because Perfect 10, in the Court's opinion, was unable to show either of these criteria. It does not seem to be that important of a criterion in the Google case, but the seemingly black and white use in the Napster case shows how important this type of analysis is in copyright infringement. Because it supports my thesis, it is important to show that the criterion is essential for keeping things fair under copyright. The Napster case shows that this analysis, which supports Google, is very well thought out and essential for Fair Use.
This is the case and decision handed down by the United States District Court that is amending the decision of the Central District Court of California. My paper will focus on this decision and the reasoning behind its decision. First, it summarizes the case, which is that Perfect 10, Inc. sued Google, Inc. for infringing their copyrighted photographs of nude models among other claims. The district court originally prohibited Google from creating and publicly displaying thumbnail versions of Perfect 10's images. They did, however, allow Google to link to third party websites that display infringing full-size versions of Perfect 10's images. Both Perfect 10 and Google appealed the decision.
The decision also discusses the background of the situation including the use of the internet, HTMLs, search engines, and specifically how "Google Image Search" works. Generally, Google uses HTML instructions to access other websites and, through a third-party website, shrink their pictures or graphics down into thumbnails. These thumbnails are displayed in "Google Image Search" and linked to image where it is stored on the website publisher's computer. It also discusses the background information of the previous interaction between Perfect 10 and Google. This included notifications sent from Perfect 10 and Google, and the time of the filing of the suit.
This case also discusses the "Standard of Review" involved in the decision. This includes the aspects of Copyright law that are involved and how they apply to this situation. It also discusses how Perfect 10 accuses Google of Direct Infringement, its specific requirements, Perfect 10's argument for it, and Google's defense (Fair Use). It discusses how Google is not secondarily liable for copyright infringement as well as Amazon.com's involvement and their innocence according to the same reasoning. Finally, they conclude that since Perfect 10 is unlikely to overcome Google's Fair Use defense, the district court's decision is reversed and Google is innocent for both the direct and secondary infringement charges.
This is the original case brought against Google. It both supports and rebuts my thesis. The decision was not a full victory for Perfect 10, but compared to the appeal, it was more successful. I will use this case to point out the flaws in the decision and to contrast Google's argument with the appeals case. Just like the case in the Court of Appeals, this case focuses on the question: "does a search engine infringe copyrighted images when it displays them on an "image search" function in the form of "thumbnails" but not infringe when, through in-line linking, it displays copyrighted images served by another website?"
Perfect 10 moved for a preliminary injunction against Google and Amazon solely based on copyright claims. They wanted to prevent Google and Amazon from displaying thumbnail copies of their copyrighted images and also from linking to the third-party websites that host the infringing images. The court decided that Google's use of thumbnails likely do directly infringe Perfect 10's copyright. They also decided that Perfect 10 will likely not succeed with its vicarious and contributory liability theories. Just like the appeal, this case goes pretty far into the details of both Google and Perfect 10, as wells as the charges and how the charges either apply or do not apply.
In the charge of direct infringement, Google defends themselves by arguing that many of its actions do not infringe upon any of the exclusive rights granted to the owner of a copyright, and to the extent that its actions do implicate those rights, such use is fair according to Fair Use. The court rejects the Fair Use argument partly. They state that Google's use of the thumbnails is commercial and thus against the first part of Fair Use. In my paper, I will argue against this decision because an overwhelming majority of Google's commercial gain from thumbnails is not copyright infringement. They state that Google's use is very transformative and that their use no greater than necessary to provide their goal, which is providing effective image search capabilities. These assessments show that the Court believed that Google was compliant with the second and third factors of Fair Use, and agrees with my thesis. They argue that Google's images likely do harm the potential market for Perfect 10. This would mean that Google infringes upon the fourth and final factor of Fair Use. I disagree on the grounds that Google is not even creating these images and thus the burden falls upon the people downloading the images.