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.'"

Comments

Question

[HeavensBlade23]

How is an image search substantially different than a text search? Wouldn't making a thumbnail with a link to the original image fall under fair use, the same as google cache or even the partial webpage text displayed in a regular google query?

Re:Question

[Belseth]

How is an image search substantially different than a text search? Wouldn't making a thumbnail with a link to the original image fall under fair use, the same as google cache or even the partial webpage text displayed in a regular google query?

They are displaying the entire copyrighted work not an excerpt. The owner has legal control of where and how the work is displayed. They would have to recieve permission to use the work in any form. A thumbnail is still the image itself just greatly reduced. They might get away with showing a modified alias of the work where it's stylized in some way but that's the only way around the issue I can think of.

Re:Question

[ceejayoz]

Google Cache is legal - there's not much difference here. Seems pretty open-and-shut precedent in favor of Google.

Re:Question

[ScrappyLaptop]

Interesting, but I would consider a greatly reduced resolution picture to be the equivelent of an excerpt. Think of it this way; you are getting only every 100th pel, or 1/100th of the original work. That also fits the definition of an excerpt, don't you think? A lower resolution thumbnail taken in this respect IS a stylized, modified alias of the original work.

Re:Question

[TubeSteak]

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.

Re:Question

[YouTalkinToMe]

The tricky bit here is that they are arguing that the thumbnails have the same resolution and quality as photos that they sell to be displayed on mobile phones, meaning they have an inherent value.

Of course, Google is not using them in the same manner, but one could argue that by displaying the thumbnails, Google is diluting the value (for example, for those people who use Google Image Search from their mobile).

Re:Question

[mikkom]

Usually framing of other peoples content for your site is also concidered to be strictly not okay and google is doing exactly that with their image search.

Re:Question

[wheany]

Google image search creates the thumbnails from bigger pictures available in the web for free. There is no value to be diluted. Anyone could take those same pictures and resize them and put them on their mobile phones. Except if they don't have the skills to do so or have a shitty phone.

Re:Question

[Walkiry]

>Because those thumbnails are similar in quality to content that Perfect 10 sells for mobile phones.

So, if you want to stop google from scanning and indexing all the books you want which are copyrighted, all you need to do is to offer every phrase in the book for, say, $5.99/use for fortune cookie manufacturers or even mobile phones. I bet the cost of a low-traffic server (thanks to the ridiculously high price) with the online shop for that would be a hell of a lot cheaper than the lawyers.

Re:Question

[LinuxGeek]

Ok, I have to admit to being a tad confused over this issue. Google is only indexing and thumbnailing what is publicly available from the perfect10 site, correct? Then they are concerned that google is saving me a single step in doing the same thing? I could go download the publicly available artwork and shrink it for my phone and leave google completely out of the loop.

Re:Question

[hackstraw]

Why the fuck can't they just add the following to /robots.txt, and save the time money of legal expenses?

User-agent: *
Disallow: /pictures

Re:Question

[Anonymous Coward]

So,what are you trying to say? You think that google is paying them $25.50 per month to crawl their website so they can index their images? No. Google is crawling the PUBLICLY AVAILABLE, UNRESTRICTED PORTION OF THEIR WEB SITE. If Google can see it, I can take my browser there directly and get it WITHOUT paying $25.50 per month. It would seem they are depriving themselves of the revenue. They need to secure the pictures if they want to make people pay to see them.

Re:Question

[jandrese]

But the thumbnails are still available from the internet without paying the $25.50 (I can guarentee Google doesn't sign up for sites like this just to index them). It seems to me Perfect 10 is sueing Google because they have a retarded business model that wasn't working anyway.

Re:Question

[Alsee]

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.

-

robots.txt?

[Evro]

Couldn't they just tell Googlebot not to index their images via robots.txt?

http://www.google.com/webmasters/bot.html#robotsin fo

Case closed? Oh, sorry, I forgot Google has lots of money.

Re:robots.txt?

[Pinefresh]

so you have to opt out of having your copyrights being violated?

Re:robots.txt?

[ZachPruckowski]

Maybe something like this should be opt-in? Like if there is no robots.txt file, it should default to not indexing? Personally, I feel like 99% of the web desperately wants to be on Google, hence it should be opt-out.

Re:robots.txt?

[Embedded2004]

The problem in this case is that people rip their images and post them on other sites. Which google then spiders, so their unable to disable the spidering of their property.

To me at least, it looks like they should be going after the people that steal their images, not google.

Re:robots.txt?

[larry bagina]

yes, but that's not all....

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.

Re:robots.txt?

[Penguinoflight]

The grand assumption is that most will want their website indexed. Of course if someone is determined enough to keep their site from being indexed/copied by google, they should have used the robots file. Copyrights are always something you have to protect yourself; Perfect 10 skipped quite a few steps involved in protecting their copyright and went straight to suing google.

This case is clearly a gold digging scheme, so here's hoping "Perfect 10" loses.

Re:robots.txt?

[Anonymous Coward]

More like, "If I don't close my blinds, it's ok to look at me naked in my bedroom."
In which case, yes it is.

Re:robots.txt?

[DrEldarion]

They don't make money directly off image search - there aren't any adwords displayed on it.

If you're talking about adwords on the sites that stole P10's images, then Google isn't the one infringing on the copyright, so they shouldn't be held liable.

Re:robots.txt?

[Anonymous Coward]

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.

Re:robots.txt?

[horatio]

TFA kind of obscures the fact a little that P10 isn't complaining so much about Google indexing their site per-se, but rather sites of people who have ripped off P10's images and reposted them elsewhere.

Like if there is no robots.txt file, it should default to not indexing?

So we should change the entire ruleset that governs robots.txt because one company has their proverbial panties in a wad about their images being ripped off by their own subscribers and then indexed by spiders? Any RFCs you'd like to throw out while you're at it? Maybe we should abandon TCP because that is the mechanism used to transport these images illegally across the internet.

There may be an option to add a no-index header to a jpeg file, maybe in EXIF metadata area which perhaps the search engine could honor. (Or does EXIF already have a copyright flag?) This extends an existing standard without breaking any old ones. Problem is it would be trivial to strip the bit from the file before re-posting.

Google and A9 aren't the only engines which index images. The spiders don't really (and shouldn't, save honoring robots.txt) care what the content is. They just index it so it can be found. Oddly enough, the search engines are what allow most people to find sites like P10. Talk about biting the hand that feeds you. (Okay, search engines and spam.)

Google has deep pockets, so they're a target instead of the people who are actually stealing the images in the first place. I don't like the idea of stuff being ripped off. I like even less the idea of turning a well-established standard on its head. Maybe instead of attacking Google and A9 they should leverage Google, as someone else has already mentioned, to find the infringers and go after them. The pirates would just change their robots file to allow their content to be indexed anyways.

I feel like 99% of the web desperately wants to be on Google, hence it should be opt-out.

No clue what the first part of that means, hence flying monkeys are desperately wanting to come out of my butt (?)

Re:robots.txt?

[RodgerDodger]

The real question is: How is Google meant to identify that the images come from Perfect 10? Google is no more capable of recognising the copyright theft than it is of recognising someone plagarising from a NYT article (and violating copyright that way).

OTH: If Google had even better image search, then the copyright owners could use Google to help track down the people who infringed by copying (not stealing) the images in the first place.

Re:robots.txt?

[ceoyoyo]

So what you're saying is that Google is getting sued for something some random third party on the Internet did? Seems kind of silly, no?

Quoting AGAIN from my post, I believe this is the relevant part. To which you still have to add anything insightful:

As for the adsense thing, if a web page rips off your image, you sue them, not Google. If I steal your image and put it in my magazine you can't sue all the companies who paid me to put their ad in my magazine.

I'm having fun writing tags though.

Re:robots.txt?

[hazem]

The funny thing is... how would they find the other websites infringing on their works without searching for them on Google?

Re:robots.txt?

[SvnLyrBrto]

> 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

Re:robots.txt?

[dgatwood]

No, it is entirely dependent on context. For example, at work, we have a table in the lobby where people put things to get rid of them. No judge in the world would rule that picking something up from that table is larceny....

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.

Re:robots.txt?

[Evro]

No, it's more like saying, "If I put something on the public internet, it's OK for any user agent to fetch it unless I tell them not to."

Re:robots.txt?

[Irish_Samurai]

OK, I have seen this Thumbnail = Exceprt statement more than a few times and would like to point out something.

Unless an Image thumbnail is defined or has precedence as being used under the guise of being equivalent to an excerpt in a court of law - this "common sense" definition is worthless.

Now, I do not know if thumbnail images have been recognized as equivalent to excerpts in US courts - I'm just pointing out that it is unsound to make "logical" assumptions about things concerning law, because law is about interpretation.

Re:robots.txt?

[ceoyoyo]

If I were setting up a business like Google then I would agree with you -- figure out what the law actually is.

Since this is basically a public opinion discussion forum, we talk about how things SHOULD work, not necessarily how they do. That's supposed to be the point of democracy... rather than waiting for a judge to tell you how things should be, the people figure out what should happen, tell their representatives, then those representatives make laws to tell the judges how things are going to be.

I didn't say that thumbnails were legally excerpts (that would be dumb since I'm not a lawyer, nor a judge), I suggested that they were logically. Since I'm not even a citizen of your country it's entirely up to you, the people, what you do with that suggestion.

Just start hotlinking.

[Spazntwich]

Google could just start hotlinking the pics directly from their site, then resizing them to thumnails in the search.

That wouldn't be copyright infringement, right? Just yanking publicly hosted photographs from their rightful and providing owner.

Re:Devil's Advocate

[ceejayoz]

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.

Thumbnails

[Quixote]

A thumbnail (which Google Image Search displays) is just a downsampled version of the original image.
If it is OK for Google to distribute these, why is it illegal for a person to distribute downsampled versions of WAVe files (aka MP3s)?

Re:Thumbnails

[Mr2001]

If it is OK for Google to distribute [downsampled versions of original images], why is it illegal for a person to distribute downsampled versions of WAVe files (aka MP3s)?

They aren't analogous. An MP3 file is missing much of the information that's in the original uncompressed audio file, but it's still functionally equivalent to the original; you can listen to it, burn it to a CD, mix it with other songs, etc. and in nearly all cases the differences between the MP3 and the original will be imperceptible. The information that's missing is information that your brain can't detect anyway (if the bitrate is reasonable and your encoder does a good job).

A thumbnail image is also missing much of the information from the original, but it's not functionally equivalent. The information that's missing is information that matters. You can't see nearly as much detail in a 128x102 thumbnail as you can in the 1280x1024 original, which severely limits the usefulness of the thumbnail.

Re:So let me see.

[larry bagina]

From the wiki:

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

...

The subfactor mentioned in the legislation above, "whether such use is of a commercial nature or is for nonprofit educational purposes," has recently been deemphasized in some Circuits "since many, if not most, secondary uses seek at least some measure of commercial gain from their use" (American Geophysical Union, 60 F.3d at 921). More important is whether the use fulfills any of the "preamble purposes" also mentioned in the legislation above, as these have been interpreted as paradigmatically "transformative". Although Judge Pierre Leval has distinguished the first factor as "the soul of fair use," it alone is not determinative. For example, not every educational usage is fair (see the 1914 case, Macmillan Co. v. King, although this case has only limited application since it was decided many years before the modern fair use provision became a part of the legislation).

From TFA:

However, the judge agreed that the display of thumbnails did infringe. And, because the search engines show ads against search results, he found the use of thumbnails to be commercial in nature. One of the tenets of fair use is that the usage not be commercial.

You failzor!

[Anonymous Coward]

You actually got FP, so you suxxor.

Local cache

[Lord Barrabas]

By the same logic, am I 'thieving' when my browser caches or displays their images? The only difference is that google is passing the images on, and I'm not. IANAL, is that difference critical?

Also by the same logic, am I thieving when I access text on their site? Is google breaking copyright when it provides the first sentence or so from each result on a search?

RTF Search Notes!

[Firehed]

Image may be scaled down and subject to copyright.

Not "Thumbnail (C) 2006 Google, original (C) whoever actually owns it."

This is like being sued by a museum because you remember what a painting looks without having bought another ticket.

Hold on one sec

[gargletheape]

So basically these Charlies sue Google because other websites pirate their content, and some of these have (gasp!) Google ads. Wow.

And in any case, since when did it become necessary for a search engine to know that its searches link to content that violates someone's copyrights? I mean, even the RIAA wouldn't sue Google just because I can do searches like:

http://www.google.com/search?hl=en&lr=&c2coff=1&q= -inurl%3Ahtm+-inurl%3Ahtml+intitle%3A%22index+of%2 2+mp3+%22pearl+jam%22&btnG=Searchthis.

(Not that they wouldn't like to try...)

All Google needs to do is to remove links to infringing sites when these are brought to its notice, and even there it is allowed to display the actual complaint with the list of bad URL's.

Watermark ?

[Foddrick]

What if google offered a watermarking app that allowed you to easily watermark an image that flagged it for do not index ? It would need to resist removal.

people missing the issue

[Anonymous Coward]

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.

Did you read TFA?

[Saanvik]

Read TFA. If Perfect 10 allowed Google to index their website there would be no case. The fact that your search returned no hits is favourable to Perfect 10.

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 for one am glad....

[bmvaughn]

....that Slashdot recognizes my ability to get pirated porn under the heading "Your Rights Online."

Parent Modded Down?

[JordanL]

Wow... I was just making a joke at wording... damn you WoWers are sensetive.

The REAL question is...

[syberanarchy]

...in 2006, who the fuck is dumb enough to PAY for jerk off material? :p

On topic, Google can't possibly be held responsible for the actions of these sites. That's like the RIAA/MPAA forcing them to remove all links to any warez sites.

Of course, I may just be giving them ideas...

its just research

[cvos]

now we all have the excuse of oogling perfect 10's products while claiming to fight for online freedom and an open internet. Why Google images when you can Oogle them

Easy solution...

[poptones]

Watermark all the thumbnails. Google could put a big "Gooogle" watermark across every one of its thumbnails and it would not degrade the usability of the image search itself. It would, however, pretty much destroy the value of the thumbnails as cellphone wallpaper.

Surely this is Perfect 10's problem

[harryman100]

Can't they just use a robots.txt to prevent google from indexing the images? If google can get at the content (without paying) then surely so can anyone else anyway.

If they don't want it on google. Don't allow google to index it - there are many ways of doing this (don't link to it publically, etc...) If the issue comes from pirated sites, and google indexing them - that's not googles problem, if anything they provide a very useful way for perfect 10 to find the pirated sites.

Why the fuck is this even in a courtroom? Am I entirely mis-understanding their point?

Re:Critical eliment..

[gonkem]

I'm looking at the Perfect 10 site and I'm not seeing a whole lot of costumes! :P

This only hurts Perfect 10

[harl]

Perfect 10 wins suit. Perfect 10 no longer has images on the search engines. Perfect 10 receives less traffic since people can't tell what's on their site. Less people sign up for the sight or buy the magazine. Revenew goes down.

Congrats you've protected your IP but lowered your revenue stream. Good job! *applause*

caching can be disabled

[jasonhamilton]

Google will read your page for some meta tags and will not cache your pages if you request it not to.

The actual opinion, maybe?

[Rydia]

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")

robots.txt

[_iris]

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.

Re:Robots?

[Lexi_the_linux_girl]

Easy enough to block your images and video from being crawled. Most webmasters use some sort of directory structure - just block your image & video directories.

Disallow: /images/
Disallow: /video/

And use your .htacess file to have images remotely linked in the interm go to a rude image to disuade theifs.

RewriteEngine on
# Prevent Image theft
RewriteCond %{HTTP_REFERER} !^$
RewriteCond %{HTTP_REFERER} !^http://www/\.)?|(portal\.)?)yoursite.com/.*$ [NC]
RewriteRule \.(gif|jpg|mpg|mp3|pdf)$ http://www.yoursite.com/rude_image_for_thiefs.gif [R,L]

Duh!