Andrew Bridges is the Google counsel on the board for this video and he brings up a couple very good points in favor of Google.  He points out one of Perfect 10's arguments, for the fourth factor of Fair Use, that Google's Image Search could severely hurt the market for a cell phone in the UK.  He pointed how ridiculous it would be if this large, very useful image search, could fail because of a single cell phone deal.  Clearly this shows that such an argument, from Perfect 10, should not be seriously considered.  He goes on to point out the Perfect 10 starts to combine trademark law with copyright law when they argue about framing.  He makes a very good case that the framing is very similar to hyperlinking, which is clearly not anywhere near copyright infringement. 

            Russ Frackman is the Perfect 10 counsel and brings up a potentially harmful argument against Google.  He argues that Google's linking is direct infringement because it links to copyrighted materials.  He cites a very good example of a South Park website that claims that it is not infringing because it is not hosting the video.  The video is imbedded on the page, but they do not actually host the video.  While this at first seems like a very strong argument, he fails to acknowledge the clear differences between Google and the South Park website.  Google Image Search is not directly linking to the website; rather a computer program is creating the thumbnails and the links.  The South Park website is purposefully linking to an infringing video.  He also points out that Google gains a lot by having their name on the screen in framing and the Image Search in general.  They are not merely providing a service.  While this is obviously true, it does not really hit the important issues.  Obviously the Image Search is important and beneficial to Google; if it was not, they would not have it.  It does not, in any way, contribute to the creation or even the linking to the infringing images.  For that reason alone, that aspect should not hold much importance.

 

            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.

 

           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.

 

Thesis: The Appellate Court made the correct decision by ruling in favor of Google; their use of thumbnails is not any form of copyright infringement due to Fair Use.