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.

 

Thesis: The Appellate Court made the correct decision by ruling in favor of Google; their use of thumbnails is not any form of copyright infringement due to Fair Use.

            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 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.

 

            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.

 

            This is the original case brought against Google.  It both supports and rebuts my thesis.  The decision was not a full victory for Perfect 10, but compared to the appeal, it was more successful.  I will use this case to point out the flaws in the decision and to contrast Google's argument with the appeals case.  Just like the case in the Court of Appeals, this case focuses on the question: "does a search engine infringe copyrighted images when it displays them on an "image search" function in the form of "thumbnails" but not infringe when, through in-line linking, it displays copyrighted images served by another website?"

            Perfect 10 moved for a preliminary injunction against Google and Amazon solely based on copyright claims.  They wanted to prevent Google and Amazon from displaying thumbnail copies of their copyrighted images and also from linking to the third-party websites that host the infringing images.  The court decided that Google's use of thumbnails likely do directly infringe Perfect 10's copyright.  They also decided that Perfect 10 will likely not succeed with its vicarious and contributory liability theories. Just like the appeal, this case goes pretty far into the details of both Google and Perfect 10, as wells as the charges and how the charges either apply or do not apply.

            In the charge of direct infringement, Google defends themselves by arguing that many of its actions do not infringe upon any of the exclusive rights granted to the owner of a copyright, and to the extent that its actions do implicate those rights, such use is fair according to Fair Use.  The court rejects the Fair Use argument partly.  They state that Google's use of the thumbnails is commercial and thus against the first part of Fair Use. In my paper, I will argue against this decision because an overwhelming majority of Google's commercial gain from thumbnails is not copyright infringement.  They state that Google's use is very transformative and that their use no greater than necessary to provide their goal, which is providing effective image search capabilities.  These assessments show that the Court believed that Google was compliant with the second and third factors of Fair Use, and agrees with my thesis.  They argue that Google's images likely do harm the potential market for Perfect 10.  This would mean that Google infringes upon the fourth and final factor of Fair Use.  I disagree on the grounds that Google is not even creating these images and thus the burden falls upon the people downloading the images. 

 

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 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.