The Hotaling v. Church of Jesus Christ of Latter-Day Saints case is important because it helps distinguish Google's use of thumbnails with cases that are actually not Fair Use. In this case, Hotaling, a group of researchers, compiled and copyrighted a number of genealogical research materials. At some point, the Church of Latter-Day Saints received one legitimate copy of the microfiche and added it to its main library's collection in Salt Lake City, Utah. Later, they made microfiche copies of the works without the Hotalings' permission and sent the copies to several of its branch libraries. There were many extenuating circumstances, but even with them the appellate court decided that this was copyright infringement.
This is especially relevant because Perfect 10 attempted to cite this case as part of their argument. "Perfect 10 incorrectly relies on Hotaling v. Church of Jesus Christ of Latter-Day Saints and Napster for the proposition that merely making images "available" violates the copyright owner's distribution right."(Perfect 10 v. Google) The Hotaling case differs significantly from the Google case. Hotaling made exact copies and distributed them to places that would otherwise have had to buy the copies. The infringement in this case was much more direct and obvious than what Perfect 10 accuses Google of doing with their thumbnails.
Regardless, this case demonstrates an important difference between Google and the average Fair Use case. Google is not distributing copies; they are creating thumbnails from other sites. Google is not creating these images entirely, nor are they distributing the images. Since merely making images "available" has been shown to not be enough for copyright infringement in the Hotaling case, we can carry that over to the Google case. This completely nullifies one of Perfect 10's arguments, even according to the Court, than this case is very essential to supporting my thesis. It both supports my thesis by both contrasting Google with the Hotaling case and establishing a precedent which takes away one of the opposing viewpoint's arguments.
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.