Perfect 10 v Google is a coda to the Kelly v Arriba case of 2003.  It deals with most of the same issues – online photography copyright infringement from image search engines, the creation of thumbnails from full-sized images, and whether that use is fair in the law.  Perfect 10 is an online pornography site that sued for an injunction from Google.  They no longer wanted their photos to come up as results in Google image searches, and said that the creation of thumbnails infringed their display and commercial rights.  Google responded by affirming fair use, using Kelly v Arriba as precedent.  The district court in this case ruled that Google does not infringe on the display rights of Perfect 10, but that their use is commercial, due to the presence of Google AdSense on the pages.    Google makes money from AdSense, and Perfect 10 claims the economic value of their photos increases Google’s revenue, thereby infringing on their market.  Perfect 10 also sells small, lower-quality versions of their photos to cell phone subscribers, indicating an emerging market for thumbnail-quality images.  This shows a distinct change in the market since the Kelly decision – a change in technology has created a new business model that embraces thumbnails as viable commercial entities. 
One important issue from the case is how to determine if the “display” right of a photography copyright owner is being infringed online, and how linking is involved.  If it is determined that linking to a photo is the same as “causing the appearance” of the photo, then a core function of the internet will become an infringing activity – linking to someone else’s photo, even if the link is to their site.  More people are on the web every day, and more content is being uploaded.  With the advent of blogs, an entire subculture has materialized based on the linking of content.  Linking, framing, and hotlinking are all major aspects of the general everyday use of the web.
This case has reversed certain aspects of the Kelly decision, and illustrated how technology innovation and new markets are constantly in flux.  Copyright protections and possible infringements are going to be equally in flux, as online rights are tested in court.  It is impossible to predict the ways in which new markets will be created, and many copyright owners will continue to push the boundaries of copyright law.  The online world seems brand new and many believe there is no room for our copyright tradition of moderation and balance.  But it becomes more important every day to find that balance between private and public interests. 
In July of 2006, both Google and Perfect 10 submitted briefs for the appeal of this case, meaning it is far from over.  Fair use and emerging commercial markets will continue to be argued, and hopefully a balance can be found.

 The book Licensing Photography is heavily copyright-optimistic and written to teach photographers how to make the most money off of their photos.  Only one chapter is dedicated to online photography issues, and it is not a very thorough discussion.  It is indicative of the lack of innovation in traditional photography circles, and the lack of education regarding many new digital photography markets.  For being a “how-to” guide, it is obviously lacking some key insights in the integration to the internet and online/digital photos.  Their only discussion of the use of new technology is of an offline database for linking licensing info to a photo or group of photos.
Even though the book was written in 2006, there is no mention of Creative Commons or DIY licensing issues, even though there are commercial Creative Commons licenses.  Their insistence of holding onto traditional methods could potentially harm photographers, as Creative Commons licenses can increase online exposure.  The book is not marketed just to commercial photographers, and therefore omits the interests of a large group of people who may be looking for an education in digital photography copyright concerns.  The authors also do not take into account that artists may want to use their photos in different ways and still have them available for wide use.  The chapter discourages the use of watermarking, image recognition software and web spiders, by claiming they do not work.  While being a very copyright-optimistic book, it has a very bleak and pessimistic look at online photography issues.  They mention how vital it is to track and enforce your photos’ licenses, but there is no discussion of modern licensing models. 
There is a quote in the chapter regarding copyright infringement and how it is a “double edged sword”:  “Make sure the edge closest to the offender is the sharpest one”.  This is a troubling attitude, as there is no further discussion on sending letters to copyright infringers, cease and desists, or alternatives in internet technology – even in 2006.  For being a very recent book on photography licensing issues, it is disconcerting that there is but one chapter on the topic of the web, and basically no discussion on modern issues.  This plainly indicates the need for a greater education in the photography world of recent innovations and licensing matters. Many photographers are looking for a solution like Creative Commons, as it has the potential to balance commercial and creative interests.  It can make it easier to track your licenses, and yet also increase your business and exposure.  If more artists were aware of Creative Commons as an option, it might open their minds to the issues it addresses- like a wider public domain, and more moderation in our copyright culture.

The case of Kelly v Arriba was very important in the realm of online content, namely photography, and tested the laws governing online photos.  Kelly was a photographer who sued the search engine Arriba Soft for copyright infringement.  Arriba trawled the internet for images, took the photo to make a thumbnail of it, and did not keep the full-sized original on their server.  They linked to a full-size version of the photo on the original site.  Arriba claimed their use was fair use, and though Kelly won in the district court, it was reversed on appeal.
  The decision that the thumbnails were fair use was based on the four fair use factors – mainly that Arriba’s use of the photos was transformative, and they did not harm the economic or commercial value of the original photo because the thumbnail was small and of poor quality.  It can be argued that this took some rights away from the photographer, creating the assumption that thumbnails are not commercially useful.  The Court placed a good deal of subjective emphasis on the quality of thumbnails, and did not foresee a market for them.  However, the site was a search engine, and linked users to the original photography website, more than likely increasing the photographer’s traffic and online exposure.  The key issue is that Arriba’s use of the photos benefited the public, due to the purpose of their site as a public image search engine, and not as a commercial photography site.
In the discussion of the third fair use factor, the Court agrees that creative works need more protection online, but that is the only factor that went in Kelly’s favor.  The Court goes along with the idea that if something is on the internet, it is published, and therefore the content owner loses some control.  The focus of the case seemed to lie with the quality of the thumbnail image versus the full-sized image, and not with the artist’s right to control markets and derivative works (which it can be argued that thumbnails are).  The web is clearly a tool for the public, and therefore contains new markets.   This case brings up many important online photography copyright issues that can be argued in a variety of ways.  The importance of finding a balance to these interests and rights, as well as reconciling the public versus private benefits of online content becomes clear.
The more recent case of Perfect 10 v Google brought these issues back into the spotlight earlier this year, with another decision involving thumbnails, search engines and online photography copyright concerns.

This article, written by Kathleen Murphy in 1999, illustrates some of the copyright issues photographers faced in the early stages of the internet.  This was a time when the online legal rights for photographers and other content owners were unclear and untested.  The rights of photographers were entangled with the property rights of website creators and owners.  Piracy was a problem before digital photography came about, but hosting, storing and displaying photos online made it easier to steal them.  All of a sudden it only took a right click and “save”.  It was also a daunting task to try to catch and punish photo pirates, given the enormity and anonymity of the internet.
 Ms. Murphy describes some cutting-edge technology to track down online piracy, including digital watermarking and web “spider” services like Cyveillance.  She admits that nothing is perfect, and much of the work of catching online copyright infringement is left up to the photographers themselves.  Many photographers were not willing to spend the money on watermarking, or monthly service fees for services like Cyveillance.  It is easy to see how quickly online content owners were lulled into a sense of complacency, that it just “wasn’t worth it” to track down copyright infringers.  In 1999, the alternatives were pricy and unreliable.
 Another key issue discussed is that the contracts photographers signed when licensing their photos to a website were weighed heavily in favor of the website owner, and against the photographer.  Many of them took all rights from the photographer forever.  Those rights would then be transferred to a client, in the case of a stock photo website for example, and the photographer’s rights would be omitted yet again.  Licensing is only mentioned in this context, not in the context of the photographer creating or controlling their own licenses.
 The article seems to be geared toward photographers who sell their photos to “big business” or stock photo sites, and displays a desire for stronger copyright and better online piracy detection.  This was a time when the future of internet content and technology innovation was unsure.  Very few people had the insight to sense what the internet would become, or how important individual content owners would become; on sites like Flickr for example.  Creative Commons deals with some of these issues – it allows photographers greater control over their rights.  It allows people to dictate how their work can be used, and allows for the possibility that not all photographers want “all rights reserved”, as this article would suggest.  Using Creative Commons licensing on your photos will not stop piracy altogether, but it can go a length to prevent unintentional piracy, and make your work more accessible on the internet.  Creative Commons can help create a realm of work online that is in between the two extremes suggested by this article – complete anarchy with constant photo piracy, or strict licensing that takes and wields all of someone’s rights.