The Kelly v. Arriba Soft case ties in very closely to the Perfect 10 v. Google case. Arriba Soft operated a "visual search engine" on the Internet. Just like Google, Arriba Soft produced a list of images that had been reduced to "thumbnail" images. The process is almost identical to that of Google. Kelly is a photographer whose photos have appeared in books about California Gold Rush Country. In January 1999, thirty-five of Kelly's photographs appeared in thumbnail format on Arriba Soft's image search. When notified, Arriba Soft removed the thumbnails, but because of technical limitations, the photographs occasionally reappear.
Arriba Soft's defense centered on Fair Use. The Court found that the first factor weighs in favor of Fair Use. The main argument was that these photographs were not a significant part of the economic gain and that it is very transformative and provides extra details about the images. The Court, however, found that the second factor weighs against Fair Use. This was because photographs of this nature are part of the core of intended copyright protection. The Court also found that the third factor weighs slightly against Fair Use. This decision was reasonable because Arriba Soft linked to a full size image with attributes that did not involve the original site. This argument would not suffice in the Google case because Google actually links to the original page. Finally, the Court found that the fourth factor weighs in favor of fair use. This was because there was no evidence or reason for the search engine harming Kelly's market. Do to the importance of the first factor, the Court agreed that Fair Use was appropriate and Arriba Soft was not guilty of any infringement.
This case is very similar to the Google case because of the focus on similar arguments regarding thumbnails. The only difference between Arriba Soft and Google is that Google links to the actual site from which the thumbnail is derived and that Google uses advertisement for economic gain. Because the decision favored Arriba Soft, many of the arguments made should be carried over to the Google case and support my thesis. If the thumbnails in Arriba Soft are Fair Use, then the Google thumbnails should also be Fair Use.
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.
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.