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.

 

            Unlike the other cases I will discuss in my paper, MGM v. Grokster actually appears to contradict my thesis.  Grokster distributed free software products that allowed computer users to share electronic files through peer-to-peer networks.  MGM sued Grokster for their users' copyright infringements.  They claimed that Grokster knowingly and intentionally distributed their software to enable their users to reproduce and distribute their copyrighted works.  The Supreme Court decided in favor of MGM, which would seem to be bad for Google.

            While both and Grokster and Google seem similar, in fact, their differences, in the eyes of the Court are actually very important.  Both involve a type of peer-to-peer file sharing which may or may not involve items that are copyrighted.  MGM showed that Grokster's services contained more than 90% copyrighted material.  In fact, this information did not surface until the case was brought to the Supreme Court.  Without this information, the Appellate Court decided in favor of Grokster with the main reason being that they distributed non-copyrighted material.  While I have no proof that most of Google's images are in fact not copyrighted, it is Perfect 10's job to bring that information forward.  Since they have not, one can only assume that Google's image search contains mostly Fair Use images.

            Another reason why Google differs greatly from Grokster is the purpose behind their service.  Grokster, following the Napster case, had an advertising campaign targeting the users who were looking for an alternative to Napster.  This means that they were targeting people who had been illegally downloading on Napster.  Hence, their main source of revenue is from the file sharing of copyrighted works.  Google, on the other hand, has shown no evidence of focusing on copyrighted works.  Their technology is set up like Grokster in that they do not always know what links are being shared, but their main focus is greatly different.  It is the difference in philosophies and the users' use of the services that shows that Grokster is not a good comparison with Google.

 

            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.

 

           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.

 

                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.

 

Mark Cuban, creator of Broadcast.com and outspoken opponent of Youtube, directly compares Youtube to the original Napster website in this blog entry. He attributes Youtube’s quick success to two specific sources: “Free Hosting from any 3rd Party Site” and “Copyrighted music and video.” He goes on to make direct comparisons between Grokster, Napster, and Youtube. Napster was “the first to tell you it [pirating] wasn’t illegal.” He argues that the only reason Youtube hasn’t been brought to court multiple times already is that the studios are not sure what having so many clips available illegally means for them financially. Similarly to Napster, once the lawsuits begin, they will not stop until the service is forced to shut down. He observes that Youtube is remarkably similar to Napster, because users can simply open as many Youtube pages containing copyrighted songs as they want, and then listen to the songs as they would on Napster. Youtube will be hurt not just by lawsuits, but also by the wide availability of copyrighted content in legal online channels, such as NBC making clips available on its own site. Cuban states that as soon as Youtube is sued by copyright holders, it will be forced to find and remove all infringing content. This will leave the site, he argues, devoid of most appealing content.

While Cuban is correct in noting that there is a large amount of copyrighted material available on Youtube, he fails to take into account several key details. First, he states that Youtube will be sued for inducing others to commit infringement, just as Napster and Grokster were sued. Unlike Youtube, however, Napster and Youtube advertised themselves as sites which allowed users to download any music they wanted. They actually did induce users to visit the site for the purpose of downloading infringing material, whereas Youtube encourages users to visit its site to host user-generated content, evident from its slogan of “Broadcast Yourself.” Cuban also suggests that after copyrighted material such as TV shows is widely available in other locations and once copyright holders begin ordering their content to be removed, Youtube would be devoid of any content to set it apart from competitors. However, sites like Hulu, Joost, and services run by major Television studios have been online for over a year and Youtube is as popular as ever. This debunks the argument that Youtube would be unappealing once its copyright material was removed and other legal video-viewing services were established. Rather, users still visit the site for non-copyrighted material, and it continues to thrive, having just signed several deals itself with major content creators and TV Studios. Cuban’s main oversight is in the DMCA. He completely fails to take into account the fact that the DMCA Safe Harbor law removes Youtube from direct liability for any infringing videos that are posted on its service, so long as it removes them upon request of the copyright holder.

This is a publication by the Virginia Law Review. The section focused upon for the purpose of my research paper is section C: The Kazaa era: 2001 - present. The article provides some unbiased description of the two technologies FastTrack and Gnutella. It focuses on some of the key developments in the filesharing domain after napster specifically the kazaa network. It explains how the technology descriminates between fast connections and slow connections. The article also addresses the issue how lately there appeared an effort by filesharing technology developers to write code that would reflect the copyright law. In the sense that the technology worked in such away as it is hard to place the blame on the developers. It also raises the point that the more files there being shared the better it is for the network performance and in essence for the developer. The other part of the article addresses how the music industries made every effort to stress the similarity between napster and kazaa and the other FastTrack networks. The article goes on to make reference to the Mgm v. Grokster case. Specifically it provides insight to how these technologies may have won out against the recording industries. The article quotes Judge Wilson, who presided over the Grokster case in the ninth district appeals court. The judge said essentially that if the companies were shut down, the users of the network(s) would still be able to do what they were doing.

This article is important for my research paper because it provides basis for an important analysis. For example, it was later seen that the movie industry in fact did win in the supreme court (see Mgm v. Grokster source). So although Judge Wilson ruled in favor of Grokster by saying that the technology was not similar to napster and that even if the company was shut down the users of the software would still be able to do what they were doing, it was later seen in the supreme court that Grokster actually lost. Today it is known that IsoHunt and the like are being sued and so if it is somehow possible to establish the similarity between IsoHunt and Grokster the same strategy may be applied to get IsoHunt shut down. The article also raises a few other important points such as that these networks continue to operate as long as there is more and more content being shared.

            This case is an appeal by Napster of an injunction that does not require the plaintiffs to provide any individual file names of potentially infringing works available on the Napster system. The orders require the plaintiff to provide notice to Napster of copyrighted works by providing the title and artist name for each work. When given a list of copyrighted recordings, Napster would have three days to search all files on its system and prevent the transmitting or distribution of those files. Plaintiffs had sent in notices of hundreds of thousands of copyrighted works without the corresponding file names in the Napster system. Napster complained that the plaintiffs did not provide variants in song and artist name and could mix complying items in the same notice as non-complying items because Napster could not check in the time allowed by the injunction. The consequence was that Napster would end up blocking many authorized files.  The arguments were that the DMCA set limitations on the judicial power of ISPs such as Napster, did not assess the "staple article of commerce" doctrine set forth in Sony, and that Napster has commercially significant non-infringing uses but is forced to block sharing of files even though the names do not always correspond with the contents of those files.

 

            This case brings up some important points in my research about why copyright holders are finding it beneficial in some cases to waive some of their copyright in order to use new technologies such as MP3 blogs to promote music, while they continue to fight similar technology such as peer-to-peer services. Any discussion of Internet Service Providers (ISPs) liability is important because it affects how people can make blogs and share new things over the internet. There are several ISPs which allow anyone to create a blog from them, and these businesses are based on previous cases such as the Sony Corp v. Universal City Studios, Inc case where liability of technology providers is limited if they do not have specific knowledge of infringing uses of the technology. It also shows how even though a company can send take down notices, it is still difficult and costly to actually take a case to court and win it, no matter how clear cut it originally seems.

            This essay describes what an MP3 blog is, and how record labels want to capitalize on the promotion that they provide while fighting file sharing at the same time. The essay discusses the types of copyright infringement and fair use and how they apply to MP3 blogs, as well as the factors that cause the court to view MP3 blogs more favorably than peer-to-peer networks. It discusses law suits against Napster and also by the RIAA against peer-to-peer users.  The article explains what establishes liability for infringing use, and the different expansions of the Copyright Act which have been brought by copyright owners in addressing new technologies. It then discusses some of these acts and gives some examples of violators. The next section explains the defense used when copyright owners bring suits, which is fair use, and it lists and describes the four factors in deciding fair use on a case by case basis.

 

            This essay incorporates basically every aspect of my research into why copyright holders are willing to waive certain copyright in cases such as MP3 blogs, while they continue to fight against much of new technology such as peer-to-peer services. It describes what MP3 blogs are and how they are used and different sites that can link to the unauthorized music.  It shows what the copyright holder needs to look for in order to bring a suit against infringing users, and also explains how the user of the work can try to use fair use as a defense.

Tim Wu in this Slate article describes in detail the differences between YouTube and Napster and why he believes that YouTube has very solid legal footing. Wu simply says the YouTube has a safe harbor provision in the DMCA protecting them, while  He also describes the "Bell lobbyists" and how their efforts set the foundation for YouTube's seemingly successful business model. 

The Bell lobbyists, Wu writes, fought one of the greatest copyright struggles in history when it took on Hollywood over the liability of internet companies for copyright infringement.  Wu describes the clash of these two entities as "Frazier meeting Foreman", saying that the unstoppable force that was the Hollywood lobbying team finally met an immovable object in the Bell lobbyists.  Hollywood, on one side, wanted internet sites to be responsible for all content on their site, even if they were unaware of the infringing content.  The Bell lobbyists insisted that this was ludacris and fought against Hollywood's lobbyists with all their political might.  A stalemate insued, so a compromise was reached.  Wu writes that this compromise would later become Title II of the DMCA, which states that companies are protected by a "notice and takedown" system.  This means that all a site has to do to comply with copyright laws is take down infringing material at the request of the copyright holders.  Therefore, YouTube only needs to quickly takedown any material after notified to avoid legal issues. 

Wu does mention that this provision is not 100% "air-tight" noting that if YouTube knows there is infringing material on its site and fails to act, it may be liable in court for the infringement.  Wu then describes the difference between Napster and YouTube, saying that if the Internet were a red-light district, Napster would be the "pimp" and YouTube the "hotel".  He says that while Napster, like a pimp, is a means of getting illegal things and nothing else, YouTube is like the hotel in that they only "provides the space for people to do things, legal or not".

Brian P. Wilkner discusses in this article the effects of the Sony v. Universal and MGM v. Grokster on the newest batch of cases that will "pit mainstream, consumer-participation-oriented companies against copyright owners".  The article gives background information on both the Sony and Grokster cases and talks about the contributory liability doctrine, and how the Sony decision limited the power of this doctrine by stating that Sony's VCR had significant non-infringing uses.  On the other hand, it noted the Napster and Grokster cases which found each music file sharing company guilty of copyright infringement, and therefore were illegal.  Napster's fatal flaw, writes Wilkner, was the fact that they had a centralized indexing system that gave the creators of Napster too much knowledge of what was actually being shared on their website.  Grokster attempted to circumvent this problem by creating a decentralized index which "deprived their creators of any knowledge of infringing activity".  The Supreme Court ultimately ruled against them, saying that companies that distribute a device with clear intentions of promoting copyright infringement were illegal, and that Grokster's claim that they were unable to stop copyright infringement from taking place demonstrated an "unlawful objective".  One of the interesting tidbits about the Grokster case was that the court did not rule on the limits of the Sony decision, as many court observers thought they would.

Wilkner then goes on to talk about "inverse Grokster scenarios",  which he says will "pit content owners against legitimate organizations seeking to capitalize on the demand for interactivity".  Companies like Google, MySpace, and YouTube, he states, will not make statements or take actions to promote copyright infringement, but will maintain day-to-day operations with the knowledge that some copyright infringing content is being viewed or placed on their sites.  This is in direct contrast with Grokster, which claimed ignorance by stating it was unaware of any infringement taking place on its site.  The article ends with Wilkner proposing a "test" of the inverse Grokster dilemma in which the courts will have to decide whether the public benefit from these sites outweighs the property rights of copyright holders. 

Amanda Bronstad in this article writes about the differences between the copyright infringement cases that ultimately doomed music file sharing sites like Napster and Grokster and the current batch of cases involving video sharing sites like YouTube.  On one side of the argument, video sharing sites say that a major percentage of their content is perfectly legitimate and legal.  Also, these sites, especially YouTube, point out that they remove content considered to be copyright infringing immediately after they are notified by the copyright holder.  This did not happen with music file sharing sites. However, lawyers for Hollywood's major studios say that their case is bolstered by the fact that they now have a precedent in MGM v. Grokster.  They argue that web sites know they make money off of this infringing material, and therefore are liable for induced infringement.  They also say that video sharing sites may be considered direct infringers because of the role these sites take in editing user content.

Bronstad also notes that while the recent agreements between YouTube and major studios such as Universal, Warner, and CBS does help legitimize the site, the agreements aren't necessarily "suit proof".  She says that many experts in the field see a major gray area that could be exploited by an ambitious company or law firm.  She says that the debate will ultimately come down to the DMCA's "safe harbor provision", and whether or not these video sites have put in place and enforced rules to protect themselves from future legal issues.  She says that the strongest safe harbor these companies have is the ability to remove copyright infringing material from their sites.  If sites continue to consistently remove copyright infringing content, as YouTube has done over the last few months, then these companies will have a strong legal foundation for their business models.  

 

    This article is a guide to how DRM controls the market place.  The article shows how music services that consumers pay for give their customers less than they promise because of copy protection and the DMCA.  The guide explains the restrictions of various music services and how the services cover these up through marketing.  The first service is iTunes.  Even though you purchase the music through Apple, iTunes can change the DRM whenever they want, thus they can change and limit what you can do with music that you own.  Apple also limits first sale, backing up, remixing, player compatibility and format conversion.  Even though you own the song, the DMCA allows Apple to control the music that you purchase and restrict your uses of it.  
Microsoft’s “Play for Sure” claims that Windows Media Player’s DRM allows you to choose your music and devices.  However, there are still severe restrictions because of DRM.  There are very few players that are compatible to play with the WMA DRM format.  If you want to use a player that does not support WMA content, you have to repurchase your library of music.  Even though Microsoft markets their DRM as user friendly and non-restrictive, it is more to make DRM a norm than the truth of the matter.
RealNetworks markets their services as compatible with any MP3 playing device.  This in fact is not true, because music purchased through RealNetworks only plays on devices that support their DRM or the WMA format, thus limiting the players that the songs can be played on and restricting use of their music. RealNetworks, like iTunes, limits the number of times you can burn a song as well as the number of backup copies that can be made.  They reserve the right to modify their DRM and what it controls.  RealNetworks also does not allow reselling or remixing songs purchased through them.
Napster 2.0 advertises itself as a service that allows you to have all the music you want in anyway that you want it.  It offers three services and all charge more for uses that were once free.  Napster Unlimited allows you access to all the music you want until you stop paying the monthly fee.  You also have to pay if you want to put it on a device, which can only be one that supports WMA.  It also costs money to burn it.  The DRM restrictions can change, you can only backup a limited amount of times and burning is restricted.
    I will use this article as an example of how companies use DRM to exploit the music market place.  Each service limits the music they sell so that it can only be used with products that they license.  They also limit what a person can do with the music, even things that are traditionally acceptable under copyright law such as making back up copies and the first sale doctrine.  This article shows how the DMCA changes traditional copyright laws and allows companies to exploit their customers.