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.
New York Times Co. v. Tasini is a case with similar information and applications to the topic of my thesis. This case was taken to the Supreme Court, therefore, the decision and reasoning is very strongly applicable to any case. In this case, six freelance authors (Tasini) had articles published in three publications, including the New York Times. Two computer database companies took their articles, along with all the other articles in these publications and added them to their databases. They had permission from the New York Times and other publications to do this, but not from the freelancers. Within these databases, the articles are all retrievable by a user in isolation of its context in the original print publication. Like Google, users of these databases can search for several key terms or names (including author and where it was published) to find what they are looking for.
The Supreme Court ruled in favor of the New York Times and the database companies. As stated in Perfect 10 v. Google, "The Supreme Court has indicated that in the electronic context, copies may be distributed electronically." Google's search engine uses HTML instructions that tell a user's browser where to find the full-size images, but Google does not actually distribute the copies. It is the publisher of the website that actually allows users to transmit the images to their computers. Then, like in Tasini, the user can download or print the image.
New York Times Co. v. Tasini is both similar and very different from Perfect 10 v. Google. It is similar in that they both involve distributing copyrighted works electronically. The databases from the Tasini case were allowed to distribute copies of work electronically without direct permission from the authors. Therefore, shouldn't Google be able to do the same thing with images? The difference makes this question even more obvious. Google, unlike the databases, is not even distributing the copyrighted works. They are merely creating links to make the works more easily accessible. This case supports my thesis by showing a related case with a decision that is similar to that which I am arguing for.
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.