Eugene Goryunov gives her opinion on Perfect 10 v. Google and gives an extensive description of the case, the decisions, and the progression of Copyright Law. In general, he strongly agreed with my thesis and agreed that Google should not be found liable. His analysis centers on his assessment of the Court's decisions. His first assessment is that the judge used a proper application of the "Server" test to in-line linking because "Google's use of in-line linking and framing does not constitute a "display" of images and cannot serve as a basis for finding direct liability.(516)" This supports my thesis because this holds that Google is not directly liable for copyright infringement.
Goryunov follows this by offering his opinion on the Court's assessment of Fair Use. He disagreed with the district court's application of the first and fourth factors of Fair Use. According to Goryunov, "the court abused its discretion by apportioning excessive weight to the commercial nature of Google's secondary use and ignoring the highly transformative secondary use of the technology, which weighs in favor of fair use as a matter of law." Thus, he agrees with me that the transformative use is more important than the commercial. This supports my thesis in that the first factor leans towards Fair Use and therefore supports Google. With regards to the fourth factor, Goryunov stated that, "the court abused its discretion in finding that Google's secondary use of thumbnail copies of P10's full-size images had an adverse effect on P10's market." He continues by arguing that Google's image search actually would not and does not have an adverse effect on Perfect 10's sales. This also supports my thesis since it claims the fourth factor is Fair Use and is thus supporting Google.
He continued by speculating what he believes could be a useful addition to Fair Use. He states that some people have suggested adding a fifth factor that would use public policy as a guiding force. This would help Google and my thesis, for Google's image search helps the public obtain images greatly, even those which are not infringing on copyright. He goes on to agree with the District Court's decision to find Google not secondarily liable. This pretty clearly also supports my thesis and Google's argument.
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.