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Partial Victory for Perfect 10?
An anonymous reader writes "Internet News is reporting that a recent statement made by district court judge A. Howard Matz has declared a partial victory for Perfect 10 in their efforts to stop search engines from displaying their photos in an image search. From the article: 'Perfect 10 is likely to succeed in proving that Google directly infringes its copyright by creating and displaying thumbnail copies of its photographs. Perfect 10's copyright infringement case may take years to wend its way through the courts. But a victory could hamstring image search, along with video and audio search services.'"
An image search takes a copyrighted photograph, manipulates it, and then stores it on it's server for display to a user of it's site.
Sorry to say, seems like a pretty cut and dry case to me.
http://www.eff.org/deeplinks/archives/004344.php
The court granted summary judgment in favor of Google on four independent bases:
Serving a webpage from the Google Cache does not constitute direct infringement, because it results from automated, non-volitional activity by Google servers (Field did not allege infringement on the basis of the making of the initial copy by the Googlebot);
Field's conduct (failure to set a "no archive" metatag; posting "allow all" robot.txt header) indicated that he impliedly licensed search engines to archive his web page;
The Google Cache is a fair use; and
The Google Cache qualifies for the DMCA's 512(b) caching "safe harbor" for online service providers.
All of those would seem to equally apply to Google Images' thumbnails cache.
Second, most of the results for searches on his company name or the names of the models he has under contract lead not to Perfect 10 sites, but to sites that have pirated his images.
Finally, the suit claimed that Google should be held liable for helping searchers find sites that display stolen Perfect 10 images because, in many cases, those sites also show Google AdSense contextual ads. "Google not only copies and displays Perfect 10 images itself," the request for the injunction read, "but also links them to Infringing Sites with which Google has partnered and from which Google receives revenue through its AdSense advertising program."
They can ban google via robots, but google still displays their (pirated) images from other sites. Google has lots of money ... but they also make money (adsense) from those copyrighted images, which means fair use doesn't apply (per the judge).
In a fair world, they should be thanking google for making it so easy to track down people who are improperly distributing on their copyrighted images.
Do you even lift?
These aren't the 'roids you're looking for.
Google Cache is legal - there's not much difference here. Seems pretty open-and-shut precedent in favor of Google.
If you RT entire FA, you would have discovered that the Perfect 10 is suing over thumbnail images.
Why?
Because those thumbnails are similar in quality to content that Perfect 10 sells for mobile phones.
In other words, the thumbnail is copyrighted work. This is why you (the parent post) are wrong, and the GP is correct.
[Fuck Beta]
o0t!
As usual, horray for slashdot: where you can get modded insightful commenting on an article you clearly DID NOT READ.
They are *not* suing google for indexing THEIR web site. They are suing google for indexing OTHER PEOPLE'S websites. Websites that are infringing on their copyright.
I think their legal theory is BS, and yeah it sounds pretty gold-digging to me too. However all you people screaming "duh, robots.txt, LOL!!1!" are missing the point too. You can't put a robots.txt file on a domain you do not control.
people posting about robot files don't understand the issue. Perfect 10 does block Google's web crawler. it is other sites that have stolen Pefect 10 images (by paying for an online subscription and then pillaging the site's images), and then Google Image Search indexes those sites, creates thumbnails of the stolen images, links to them, and then generates literally hundreds of millions of dollars from AdSense revenue.
Here's the case in a nutshell. Perfect 10's copyrighted images are being appropriated by others. Google indexes them and displays the thumbnails of them. Since Perfect 10 didn't give Google permission to display those images (as you noted in your post, they don't allow Google to index their images), when Google displays the thumbnails they are, under our current copyright laws, breaking the law.
This is similar to the case brought against Kinko's for creating coursepacks (see Basic Books, Inc. v. Kinko's Graphics Corporation. Kinko's made partial copies of course material and sold it to students. Kinko's believed these coursepacks were allowed by educational fair use rules. Kinko's, like Google in this case, didn't make complete copies. They only copied pieces of the material to help students get to the heart of the material. Google doesn't copy the entire copyrighted image, just enough to get the important part. The courts ruled against Kinko's, and the judge here said it's likely the courts will also rule against Google.
The biggest difference is, in the case against Kinko's, they were the ones taking direct action. The Kinko's case would apply more directly if someone had come to Kinko's and said, "Hey, we've got these great coursebooks for sale. If you point people our way, by giving away the first five pages with a link to us, we'll give you five cents for each copy we sell. You have to make copies of the first five pages yourself, though."
There are some other differences, too. Kinko's directly profited, whereas Google only indirectly profits (from advertising). The judge agreed that that part of the case is weak. But you don't have to make money to be infringing a copyright. That may help Google avoid paying as much in damages, but that's about all it means.
> I'd love to see Google win this, but P10 does have a point (even if they are only making it
> because they want a piece of Google's pie) - should store owners have to place signs saying
> "no stealing" at their door, or expect to give theives free rein on their stuff?
No, they don't have a point. Google doesn't take anything from anybody. The more apt analogy would be if you want your phone & address listing left out of the white pages and 411; in which case you most definitely *DO* have to actively make it known that you want your information to be unlisted. In fact, the last time I checked (It's been a while, admittedly.) the phone company actually makes you *PAY* for the "privilege" of being unlisted. All this is, is a blatant fishing expedition, wrongfully targeting a company with deep pockets, nothing more.
cya,
john
Imagine all the people...
Regardless, from a legal perspective, this is a copyright issue, not a theft issue. Since it is a copyright issue, this case is a clear cut, open and shut case. There is zero, repeat zero possibility that Perfect 10 will win this suit, though they may get a temporary stock boost in the short term by winning the first round....
This case does not differ substantively from Kelly v. Arriba Soft Corp. which was decided by the 9th circuit (California). That case found that image thumbnails by commercial search engines are fair use. This judge is actually ruling in a way that is contrary to a ruling by his own circuit on a case that's almost identical! Unless Google's lawyers are completely incompetent, this is the sort of case that, if decided in Perfect 10's favor, has basically a 100% chance of being overturned on appeal....
IANALBIPOOSD.
Check out my sci-fi/humor trilogy at PatriotsBooks.
Okay, so I actually read the opinion, at The court's site. The substance of it is that there's no question that google is infringing a copyright (makes sense), because it is redisplaying images that are strictly for sale, and while the images are smaller, P10 itself sells images of that size, and the smaller resolution is still a form of reproduction. Google tries to rely on fair use, but fails because the court considered a "consumptive use" because google's ad service renders furnishing the image a commercial use, and since the reproduction is essentially identical to the image (though smaller), and the smaller image is actual for sale on the site. It's pretty much a slam-dunk for P10.
People on /. need a heaping helping of knowing what the law means. (Hint: It's not "what my favorite company is doing is fine" or "what I think is right")
A co-worker of mine runs a photography business on the side. One of the photos he put on his website (of cinnamon sticks) was lifted by some cooking magazine to use as the centerpiece of their website. He emailed them, notifying them that the image was under copyright. They took the image down and replied that "It was on Google's image search", implying that they thought everything on Google's image search is free for the taking. Instead of bringing suit against Google or the magazine, my co-worker simply added a robots.txt to prevent the images from being indexed. End of problem.
Correct. Google's commercial states does weigh against them in attempting to claim Fair Use. I am in no way dissagreeing with the parent poster.
However I would like to clarify for others that commercial use can in fact be Fair Use. To clarify that money and profit are not incompatible with Fair Use. One of the landmark cases in the field of copyright law and Fair Use was the US Supreme Court case CAMPBELL v. ACUFF-ROSE MUSIC, INC. (1994) which ruled that copying for the direct and explicit purpose profit could in fact fall under Fair Use.
The publishing industry routinely missrepresents the law on copyright, especially in relation to Fair Use. Anyone who says that any single factor 'X' (such as commercial use or the copying of the entire work), that any single factor 'X' rules out Fair Use, that person either missunderstands the law and is unintentially missrepresenting the law, or that person *does* understand the law and they are deliberately missrepresenting it. A finding of Fair Use is based on a weighing of multiple factors, and no single factor is determinative. A use can "fail" any number of "tests", yet still qualify as fair use on the basis of any other factor the court deems outweighs them.
In fact something could "fail" all four of the "tests" commonly cited in relation to fair use, could fail all four of the factors written into law, yet still pass as Fair Use on the basis of some other unlisted factor. It would be improbable in the extreme to fail all four of those factors and still manage to qualify as Fair Use, but it is legally possible. The court has the power to consider other unlisted factors, and the court has the power to weigh them as it sees fit. The court could give the four listed factors zero weight in relation to some other overriding issue.
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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.