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 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.
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".