Ruling May Impact Google Book Search Case

jsherman256 wrote to mention an NYT article discussing another possible problem on Google's legal front. A court decision in another case may spell trouble for their 'book search' technology. "In the recent case, Judge A. Howard Matz of United States District Court for the Central District of California, said Google's use of thumbnail-sized reproductions in its image search program violated the copyright of Perfect 10, a publisher of X-rated magazines and Web sites, because it undermined that company's ability to license those images for sale to mobile phone users ... 'I think it takes the wind out of their sails,' Jan Constantine, the general counsel for the Authors Guild, said of the Perfect 10 decision. The guild and the Association of American Publishers brought copyright infringement lawsuits against Google over its Book Search program."

Comments

Still fair use

[thelost]

In my eyes googles book indexing service is still fair use as it's not abusing the copyright of the books they are indexing and as it's fair use they don't even need to ask anyone. I'm not sure how this case affects their book effort?

Re:Still fair use

[mcubed]

It affects the book search case because it sets a precedent for showing that if Google is benefitting financially from its efforts, and those efforts have the potential to cause economic harm to the copyright holder, then Google can be liable.

There's no question that Google will benefit financially from Google Book Search. Google's program is commercial; it will make money selling ads on its search pages. There's no question that Google Book Search will infringe copyright. The question is whether Google's infringement is fair use. Part of the determination of whether copyright infringement is fair use goes to the potential of that infringement to cause economic harm to the copyright holder. If Google can index the complete text of a book without paying the author, the author can't sell that right to another party.

In the Perfect 10 case, Perfect 10 claimed Google's thumbnails interfere with its ability to sell its own thumbnails to cellphone companies. It's not clear to me that the Authors' Guild will be able to point to so specific an instance of economic harm. OTOH, the courts are generally reluctant to try to anticipate the market. Who's to say book search indexes that will pay authors for the right to include their texts won't spring up? I think the AG can probably make a compelling argument that Google's infringement chokes off the potential for authors to make money directly from selling this right, even if no one is putting money on the table right now. But that argument might not be compelling enough for things to go the authors' way.

Michael

Re:Still fair use

[hhawk]

A key difference here being that a thumbnail contains 100% of the information even though the size is reduced (personally i think its clear that a thumbnail has reduced value (See Below)).

Google isn't putting entire books online in the same way. They are only telling you which books contain the terms your searching on and show some (hopefully) fair use sized examples.

The idea that someone is going to a porn site is so they can become sexually excited. I have no doubt that a thumbnail might cause some excitement depending on the image, but that people are going to be giving pleasure to themselves by looking at thumbnails and then not pay for the site is silly.

Re:Still fair use

[dgatwood]

True enough, but more than that, Google making a profit does not negate fair use. In fact, this is probably the least significant issue where fair use is concerned. A lot of fair use is commercial.

This is a lower court ruling that runs counter to higher court precedent in the same circuit on basically the same issue. The only reason Perfect 10 even won the lower court ruling was because they sell those thumbnails commercially.

Now it's up to a higher court to realize that if the creators of fair use clauses in Title 17 had wanted it to be optional, they would have made it so. Effectively, if that lower court ruling stood, it would mean that a company could make distribution of excerpts illegal by making those excerpts available commercially and claiming that free excerpting harms their business, i.e. effectively making fair use optional.

I'd give this ruling a few months, tops.

Re:Still fair use

[Anonymous Coward]

This is still fair use. The judge is mistaken (and violating precedent). Now, if Google were selling the same thumbnails the Plaintiff's do to cell phone users, then the Plaintiffs might have a case. As it stands, Google's thumbnails are being used in a decriptive context to provide an informational resource for finding images online. The full-size image on which the thumbnails are based are not being used except in profile. Moreover, the full-size images are being served publically (by the Plaintiffs), making them fair game for thumbnailing as a reference to the original. Google is not copying the full size image. They are describing it in profile for reference, like a summary of a book written in a newspaper review.

That the Plaintiff's appear to make their own summary of their original work does not means others cannot do the same. Although others cannot use the exact same summary (they have to make their own, as Google does).

Re:Still fair use

[Pofy]

>In my eyes googles book indexing service is still fair use as it's not abusing the copyright of the
>books they are indexing and as it's fair use they don't even need to ask anyone. I'm not sure how this
>case affects their book effort?

Lets see, so according to you, it would be OK for me to connect to every p2p network I find, dowload and keep a copy of everything for indexing and then making all those copies searchable and linking to were I find them and also provide small snipets from the files, for example music files. Cool.

Re:Still fair use

[thelost]

your argument is quite weak, firstly you are mixing media. If you downloaded a broad cross section of files from p2p networks you would end up with a massive array of stuff, from movies to tax returns (how the hell do they ever get on filesharing networks!) whereas with google books we are talking about just that, books. Secondly google are working in close company with some very esteemed universities on this project, it's not like this is #bookwarez on efnet; At no time are google going to give people access to books they don't own the copyright to, so your comparison is innapropriate. Google will make money off advertising using their very successful advertising model, all the authors guild wants to do is perform a shakedown and see if they can leech money off of google, who are taking something and simply improving it. The authors guild are a bunch of idiots if they don't see the potential to increase sales from this.

Re:Still fair use

[Pofy]

> firstly you are mixing media

So? Why would they matter? Or are you saying that if google start to do it with other media they are suddenly in the wrong? Besides, I might just stick with music or movies.

>Secondly google are working in close company with some very esteemed universities on this project

So if you work with a University it is suddenly less copyright infringement?

>At no time are google going to give people access to books they don't own the copyright to, so your
>comparison is innapropriate.

Were did I say I would do that? I would just index it and point people towards were to find it, showing a small part as an example of the "hit".

> Google will make money off advertising using their very successful advertising model,

So, I will not make ANY money out of my indexing, that is actually good, since making money out of it is typically giving it a HIGHER chance of being infringement nad not fair use.

Re:Still fair use

[mcubed]

Google isn't putting entire books online in the same way.

Google is copying the entire book. It has to, in order to make a complete index. Book Search wouldn't work if Google only copied a chapter.

I see a lot of people, especially here on /., hung up on the issue that Google's not displaying the whole book. I don't think that's such a big deal. Google still has to make use of the entire work, or its book search won't work.

A reasonable analogy might be a book review. A reviewer can quote excerpts from a book in the course of a review. But those excerpts can't be excessive. You can't write a 10 chapter review of a 10 chapter book that ends up quoting or paraphrasing most of the book. Google has to "quote" the entire book, even if it only serves up fragments. That, I think, counts against Google in a fair use determination.

Michael

Re:Still fair use

[Anonymous Coward]

Part of the determination of whether copyright infringement is fair use goes to the potential of that infringement to cause economic harm to the copyright holder.

Sure... But the other factors are more or equally important. Consider a book review prominently placed in the New York Times that declares a book to be total crap. Suppose that book review quotes a few paragraphs from the book to support its claim. This use of material is clearly commercial (though some might argue that editorial content is a seperate category from commercial content - and I tend to agree with that), and it could likely be determined that this use can cause economic harm to the publisher, but it's not outside the bounds for fair use.

Re:Still fair use

[hhawk]

they have to index it and maybe build a concordence. etc... that is sweat of the brow type work. its also really because of that sweat a dirivitive (sp?) work. furthermore indexes are treated uniquely by the IPO.

Re:Still fair use

[mumblestheclown]

Does "it's ok because in my eyes it's ok" pass for a discussion argument these days on slashdot?

Re:Still fair use

[Anonymous Coward]

A reasonable analogy might be a book review. A reviewer can quote excerpts from a book in the course of a review. But those excerpts can't be excessive. You can't write a 10 chapter review of a 10 chapter book that ends up quoting or paraphrasing most of the book. Google has to "quote" the entire book, even if it only serves up fragments. That, I think, counts against Google in a fair use determination.

That analogy isn't quite true though. Just as the Google Book service indexes the entire book, the person writing the review of the book reads the entire book for the clearest view. The person reading the review doesn't have access to the entire book through the review, just as the person using the Google Book service doesn't have access to the entire book. However, the entire book is taken into consideration in both instances to provide the best service. I see nothing wrong in that.

Re:Still fair use

[rm69990]

There's no question that Google Book Search will infringe copyright. The question is whether Google's infringement is fair use.

Ummm, if something is considered fair use, then it isn't copyright infringement. Copyright infringement that is fair use is not only not legal or legal, it doesn't even exist. It's either copyright infringement or fair use, not both.

If Google can index the complete text of a book without paying the author, the author can't sell that right to another party.

And Google takes that right away from the author how exactly? That's almost like saying if I take Microsoft's source code and illegally include it in my product, I have just taken Microsoft's right to license their code to third parties away. It simply does not work that way. Oh, and by the way, I can index other's works without their permission, so it would be completely pointless to sell that right to someone else.

You completely ignore the fact that the Perfect10 was primarily regarding copyright infringement by Google making Perfect10's copyrighted works available to others, while the AG case is regarding copyright infringement by Google scanning those books into a computer without permission. I have read the full complaint against Google, and that is the primary basis of it. They do make a claim that Google is making their works available to others, but again, that is simply not true. Google makes about 5 lines of a book available to other people, unless it is either public domain or they have a license to allow more to be viewable.

Re:Still fair use

[anthony_dipierro]

A reasonable analogy might be a book review.

If the reviewer went to the libary, took out the book, scanned in the entire thing, returned it to the library, then used limited quotes from the scan in his review.

Otherwise, another analogy would be plain old Google. They take entire websites, copy them, and provide the end user with small portions of those copies. There is a major problem with this analogy, though. Websites are intentionally published for anyone on the internet to use for free (at least, the ones which Google indexes generally are). With books, this isn't the case.

I really think the Google Book Search case is going to be a tough one. In fact, I wouldn't be surprised if it reached the Supreme Court and became one of the major precedents of copyright law. Then again, maybe I'm just being overly optomistic. One thing Google has going against it here is that the judge could take issue with the fact that Google hasn't actually purchased the books in question, they're only borrowing them. Format-shifting is one thing - borrowing, copying, and returning, is another one altogether.

Re:Still fair use

[1u3hr]

A reasonable analogy might be a book review. A reviewer can quote excerpts from a book in the course of a review. But those excerpts can't be excessive. You can't write a 10 chapter review of a 10 chapter book that ends up quoting or paraphrasing most of the book. Google has to "quote" the entire book, even if it only serves up fragments. That, I think, counts against Google in a fair use determination.

In this analogy, Google's "copying" of the work is like the reviewer reading the book. A "copy" of the book exists as whole, in his brain only. I can't agree that they are "quoting the entire book". Google goes to great lengths to prevent users from accessing more than a few lines of a book they don't have explicit permission to feature, you get blocked before you can accumulate a single page. Much easier for book pirates to borrow or buy a copy and scan it themselves; and if you look on alt.binaries.e-books, for instance, you'll see many results from exactly that; Google is not introducing a new threat to books' copyright.

Re:Still fair use

[Pofy]

>In this analogy, Google's "copying" of the work is like the reviewer
>reading the book.

So after the indexing, you claim that Google doesn't keep the copy of the book?

>Google goes to great lengths to prevent users from accessing more than a
>few lines of a book they don't have explicit permission to feature

Sure, but are they keeping the whole book to be able to shop relevant parts of it? The main problem is not what they show to a user, they only show part it, the problem would be that they make copies of the whole book to start with to use for their search service. If it is OK for google, then it seems almost anyone could copy entire works for a whole lot of other reasons too, reasons thjat involve others than the collector. If google internally can use the book for whatever they do, then it seems I could too. Seems anyone can download at will and even use what they download as long as they don't make the entire work available to others. A small modification to for example torrent clients so that no one can get the entier work from you at once would make it completely OK crom a copyright infringeing perspective.

Re:Still fair use

[1u3hr]

So after the indexing, you claim that Google doesn't keep the copy of the book?

A copy of the book? No. Data derived from the book, yes.

If google internally can use the book for whatever they do, then it seems I could too. Seems anyone can download at will and even use what they download as long as they don't make the entire work available to others.

Arguably; however the person supplying you with the download would be unequivocally breaking copyright. And infringement for a book is usually taken as a few pages at most, so your download would have to be divided amongst hundreds of "sharers", difficult to arrange without becoming some kind of conspiracy, in the legal sense. But that's a whole other can of worms, Google isn't responsible for that, each case has to be argued on its own merits.

A small modification to for example torrent clients so that no one can get the entier work from you at once

See above. You'd have to limit it to a very small fragment, like the 3 lines or so Google does. And not just "at once", if someone can trickle a page a day it's still an infringement. And you can be sure that if your system effectively publishes the entire book, or even more than a couple of pages, you won't get away with it.

Yes, there is a grey area here; that's where "fair use" lives. Few books could be published at all if they couldn't "borrow" ideas, themes, let alone entire phrases from other books without fear of litigation. You'd have to pay a lawyer thousands of dollars to review each book like a patent.

Re:Still fair use

[Pofy]

>A copy of the book? No. Data derived from the book, yes.

So how do one present small sentences from the book to show as a result of a search if you don't keep a copy of the book?

>Arguably; however the person supplying you with the download would be
>unequivocally breaking copyright.

Perhaps, but that is quite irellevant. On the other hand it is not nessecarilly so either.

>But that's a whole other can of worms, Google isn't responsible for that,
>each case has to be argued on its own merits.

My example was to do the exact same thing google do, but do it with other media types. Instead of books, I would do it for music, say. Instead of spidering the web, I spider p2p networks (yes, I know they don't find actual books that way, just presented two different and seperate examples).

>You'd have to limit it to a very small fragment, like the 3 lines or so
>Google does.

So? And what says 3 lines from a book is the limit? I am not arguing exact specs, just the general idea. People tend to argue that for goole, almost anything goes, it is a search engine, all they doo is "fair use", while for a person, a single copying tend to be argued as infringement, almost no, matter what.

>And you can be sure that if your system effectively publishes the entire
>book, or even more than a couple of pages, you won't get away with it.

Apart from my example not being about books at all but, for example music, I never claimed anything else. My main point would be the spidering of p2p networks and downloading and creating copies of what I find. In addition, creating a searchable index of were I find those files/content (now, there IS such things that typically is under quite some fire for infringement from various sources and they are not even spidering anything). That is after all exactly what google does and everything seems fine by most. Note,I am not arguing against google here, just trying to see why it is suddenly so wrong when someone else do it.

Re:Still fair use

[1u3hr]

>A copy of the book? No. Data derived from the book, yes.
So how do one present small sentences from the book to show as a result of a search if you don't keep a copy of the book?

A "book" is an object made of paper, ink and glue. Google does not have a "copy of a book", it doesn't have "a book" at all. That may not be what you were thinking of when you used the word, but that's what it means.

>Arguably; however the person supplying you with the download would be unequivocally breaking copyright.
Perhaps, but that is quite irellevant. On the other hand it is not nessecarilly so either.

Sorry, I can't even understand that.

My example was to do the exact same thing google do, but do it with other media types

Well, that is quite irellevant. On the other hand it is not nessecarilly so either.

So? And what says 3 lines from a book is the limit? I am not arguing exact specs, just the general idea.

So you want to say that one can't quote one word? One letter? One comma? You have to draw the line somewhere. As a practical matter, it's usually considered a few pages, more or less. And I have looked at a few cases, I work in publishing and the question comes up.

My main point would be the spidering of p2p networks and downloading and creating copies of what I find. In addition, creating a searchable index of were I find those files/content (now, there IS such things that typically is under quite some fire for infringement from various sources and they are not even spidering anything). That is after all exactly what google does

No, it is not what Google does at all.

Re:Still fair use

[Retric]

"So how do one present small sentences from the book to show as a result of a search if you don't keep a copy of the book?"

They might not copy the spacing, images, fount, cover, backing, copy write notice ect. To understand why this is a significant degradation try to read a long excerpt where they don't differentiate between paragraphs and tell me how easy it is to read.

Re:Still fair use

[HTH NE1]

personally i think its clear that a thumbnail has reduced value

But marketable value.

Though I wonder about some of the issues arising from displaying porn on a cell phone. With the cases against people watching porn on the DVD players in their cars where it could be visible to others, I wonder if it won't soon be illegal to look at pornography in public on a cell phone. Or even to possess an unsealed adult magazine in public just like with open alcoholic beverage containers in cars.

Anyway, back to the real subject, Google isn't looking to provide people with free copies of books or even necessarily complete pages. I'd imagine you'd get results just like the context blurbs you get for web pages, but following the link takes you to a page of vendors that sell the book rather than the book itself, and no Cache links.

Or are these book authors worried that searches for seemingly unique phrases across so many books might bring up so many results that there will be accusations of rampant plagiarism?

Re:Still fair use

[HTH NE1]

try to read a long excerpt where they don't differentiate between paragraphs and tell me how easy it is to read.

Dude, this is slashdot. We get that all the time.

Re:Still fair use

[Pofy]

>A "book" is an object made of paper, ink and glue. Google does not have
>a "copy of a book", it doesn't have "a book" at all. That may not be what
>you were thinking of when you used the word, but that's what it means.

With "a copy of a book" what is meant here is of course the copy of the story or writing in the book, gee how hard is that to understand.

>Sorry, I can't even understand that.

WHat does others doing have to do with anything? If someone else decides to commit copyright infringement, that is their bussiness. That does not turn ME into a infringer.

>>My example was to do the exact same thing google do, but do it with other
>>media types

>Well, that is quite irellevant. On the other hand it is not nessecarilly so
>either.

Considering my whole post that you replied to was about doing the same that google do, but for another media type and from other sources, I don't what you try to claim. You should not have replied to it at all then I guess.

>>My main point would be the spidering of p2p networks and downloading and
>>creating copies of what I find. In addition, creating a searchable index of
>>were I find those files/content (now, there IS such things that typically
>>is under quite some fire for infringement from various sources and they are
>>not even spidering anything). That is after all exactly what google does
>>
>
>No, it is not what Google does at all.

Ehh, perhaps you can enlighten us on what they do then. What I am talking about is two of the things google do. One is spidering the web and then making those webpages available to searching, giving you links to them and also present a small snipet of the page, typically the part that match your search criteria. They also present the option to view a cached version. The other is that they are doing the same with books (that they aquire in some way), building a similar database searchable and appearantly when you get a hit, you are shown a small snipet form the book along with links to the book (since the book is not online, I assume they give information about its publisher, author and so on).

The original poster thought this (mostly pointing to the book case) was all OK and obviously fair use. I then thought, "hey if that is OK", why would it be less OK to do the same with, say music files. ANd instead of scaning webpages on the net or scanning books, I would scan connections to various p2p networks. I would download (and scan them as well). Here is were I thought it was strange though that typically, many people feel that doing such downloading is "wrong" or infringement and so on, or at least not ok, no one at least use the "fair use" argument. However with google, it is suddenly "fair use" which I thought strange, why should they be able to spider, and copy content but no one else? That was my "example" and whole post. You seem to have missunderstood it and felt it was "quite irellevant".

You also seems to claim that google do something completely different, or at least doesn't do what I mention above which seems strange.

Re:Still fair use

[Pofy]

>They might not copy the spacing, images, fount, cover, backing, copy write
>notice ect.

Obviously when we talk about "copying the book" here we talk about copying the story, which is what you get the copyright on. One might possibly get a copyright on the way it is presented as well, no idea, but typically it is the story and words in the book that one mean when one say "copying a book" and what is infringement.

Re:Still fair use

[thelost]

well then i'll clarify, in my eyes the legal argument (although IANAL) for fair use allows google to index books for searching. I assumed people would recognise that I meant from a legal standpoint as I cited 'fair use'.

Re:Still fair use

[petermgreen]

i was under the impression that for in print books they were buying them and scanning them destructively (its almost certainly cheaper to pay for the book, cut the spine off and run it through a sheet feeder than to scan it in book form)

Re:Still fair use

[anthony_dipierro]

i was under the impression that for in print books they were buying them and scanning them destructively (its almost certainly cheaper to pay for the book, cut the spine off and run it through a sheet feeder than to scan it in book form)

Hmm, I'm pretty sure they're not destroying the books. But then again, when I read an article about it last year I thought it was referring to the Google project. It's actually referring to the Internet Archive project.

As for which way is cheaper, I suppose it depends on how rare/expensive the book is.

Anyone have a reference one way or the other as to what Google is doing?

So what they're saying...

[antek9]

... is that they are planning to sell thumbnail sized reproductions of book covers or their contents to mobile users? What a promising concept!

Sorry, couldn't resist.

Re:So what they're saying...

[Haeleth]

No, they're planning to sell individual sentences, just like Google Book Search displays.

At just 10 cents a sentence, reading books on your mobile phone is going to be even more popular than getting the latest ringtones!

not sure this makes a difference for book search

[j0nb0y]

Sounds like Perfect 10 was able to show economic harm (lost sales to cellphone users). I believe one of the criteria for fair use is that it doesn't cause economic harm.

I don't see how a book search that only shows excerpts causes any economic harm. If anything, it will increase sales.

IANAL.

If I were Google, I would just drop perfect 10 from their search results entirely. I bet this would lose them more sales than thumbnails ever would.

a non-reg article

[thelost]

here is a non-registration article at news.com explaining the reasons why google may be in trouble over their book scanning. to quote:
""I think the judge's decision completely sets up the case the authors have against Google," said Karen Frank, a partner at Howard Rice Nemerovski Canady Falk & Rabkin, a San Francisco law firm, who is not involved in the lawsuit."
I still disagree though, and feel what google is doing constitutes fair use.

Not Precedent for Google Books Search

[Gryftir]

This Lawsuit does not set a strong precedent for the two Google Book lawsuits. At least that's what I think, I encourage people who know differently to tell me I'm wrong.

Both the Author's Guild and the American Association of Publishers lawsuits were filed in New York Federal Courts, while this was in California.

Re:not sure this makes a difference for book searc

[thelost]

I would emphasize the potential for their project to increase sales, especially for books which are currently out of print, as while people frequently don't have access to out of print work now, with google books they will as so far something like 75% of the books scanned have been OOP. If the authors guild wants to argue about google making tiny paragraphs from OOP books available to search tools then let them, let them till they are blue in the face. Of course if some judge rules for them then I will just about give up hope for humanity.

Re:not sure this makes a difference for book searc

[Raul654]

I believe one of the criteria for fair use is that it doesn't cause economic harm.
- Not exactly. Fair use criteria are defined out in USC Title 17, Chapter 1, Section 107. There's no real hard and fast rule for how to apply those criteria. Courts tend to make judgement calls on a per-case basis. (Which is why lawyers make a fortune on this kind of litigation) Or, to put it another way, "None of these factors alone is sufficient to make a use fair or not fair - all of them must be considered and weighed. It's routine for courts to express degrees of acceptability or unacceptability for each factor and try to come to a summary and conclusion based on the balance." --Wikipedia Copyright FAQ.

Re:Precedent for District Court Cases

[sgent]

In theory -- precedent for district courts doesn't exist except as it applies to the case at hand.

In reality, it can make a difference. A well reasoned, well thought out district court case which is on point will carry weight with other districts. For instance, the facts and legal ruling in Arkansas v. Jones has been cited and used 100's of times -- including by the Supreme Court, although it was never actually appealed. Kitzmiller v. Dover Area School District carries a similar type of weight.

Although other judges are not bound by the decision, they often choose to affirm them through incorporation into their own rulings.

That being said, in this case it is unlikely to have significant precedent -- since I imagine Google will appeal.

Overturned by wiser heads

[lheal]

A little googling gave me some SEO site's take:

The issue is that Google was indexing photos owned by Perfect 10 but made available on pirate sites that had stolen and profited from the prurient material. Another point was that some of the rip-off artists were Google AdSense users, and therefore Google had actually made money, in a roundabout way, from the infringement of Perfect 10's copyrights. The judge also determined that Google's mobile image search was cutting into Perfect 10's business, since the mobile "thumbnail images are essentially the same size and of the same quality as the reduced-size images that (Perfect 10) licenses to Fonestarz," a UK mobile firm, for a subscription-based cell phone service.

Whether the images were pirated or not is not Google's problem. They should inform Google (who would doubtless take down the images) and go after the pirates. Google has no way of knowing who in the slimy world of online porn is the copyright owner, who is licensed, who is using stuff under fair use, and who is a "pirate".

The judge made a mistake. Google's thumbnails were not the same thumbnails. They were a different expression of the same idea. Sleazy, but not illegal.

Re:Overturned by wiser heads

[blackest_k]

I was going to suggest that google might be in a different situation if they applied a logo to each thumbnail.
This would allow people to view a thumbnail while still requiring someone to visit a site to get the picture.
  Or a norobots text or something like the broadcast flag embedded in the header of the image file.
Sure it's removable but then it's placing the blame squarely on the site modifying the image.

More worrying is the concept of Adsense being used to decide guilt upon the part of google. If a torrent search engiine site has google ads does that mean google gets hit with a lawsuit for illegal torrents?

Re:Overturned by wiser heads

[jrumney]

More worrying is the concept of Adsense being used to decide guilt upon the part of google. If a torrent search engiine site has google ads does that mean google gets hit with a lawsuit for illegal torrents?

Turned around, does this mean we can go after the advertisers for hijacking our computers with adware and spyware?

Re:Overturned by wiser heads

[keraneuology]

The judge made a mistake.

Judges don't make mistakes. The law is as the judges decree. The Constitution, too. Just ask the USSC, the US Attorney General, and a whole bunch of other people.

Re:Overturned by wiser heads

[keraneuology]

Turned around, does this mean we can go after the advertisers for hijacking our computers with adware and spyware?

~sigh~. In a perfect world, yes, we could.

Re:Overturned by wiser heads

[Anonymous Coward]

Whether the images were pirated or not is not Google's problem. They should inform Google (who would doubtless take down the images) and go after the pirates. Google has no way of knowing who in the slimy world of online porn is the copyright owner, who is licensed, who is using stuff under fair use, and who is a "pirate".

The judge made a mistake. Google's thumbnails were not the same thumbnails. They were a different expression of the same idea. Sleazy, but not illegal.

Typical... Of course a freeloading asshat cybersquatter like you would try to justify Google's outright theft of valuable copyrighted content. I guess you're just having trouble facing the fact that you'll actually have to PAY for the content you consume instead of just freeloading it using google.

FACE IT, the only difference between the same 120x90 picture on google image search and somewhere else is - wait for it - NONE. Furthermore the laughable "solution" you propose is obviously flawed. Google steals millions of images, no one has the resources to troll all of those images to find what part of that content was stolen from their websites. The only solution to this is either the closure of google image search or the limiting of it to only sites which explicitly request their images to be searched and can prove valid copyright. Deal with it.

Re:Overturned by wiser heads

[hvatum]

For better or worse I must agree with the jist of your post. As much as I would like to defend Google's use of thumbnail images they simply don't own the content.

Hopefully cooler heads will prevail and the law will be changed to allow this, however until then the only solution seems limiting Google image search only to sites which can prove valid copyright.

Re:Overturned by wiser heads

[cpt kangarooski]

Google's thumbnails were not the same thumbnails. They were a different expression of the same idea.

You've got that all wrong, I'm afraid. An idea, in the copyright sense is something like 'Boy Meets Girl' or 'The Butler Did It.' It's a very broad thing. An expression is a specific implementation of that idea, like Romeo and Juliet or some specific mystery novel. A slight variation on an expression, such as changing a few words, or making a slightly different thumbnail of the same image, is going to be infringing.

Re:Overturned by wiser heads

[Anonymous Coward]

The judge made a mistake. Google's thumbnails were not the same thumbnails. They were a different expression of the same idea. Sleazy, but not illegal.

Not quite true - when it comes to copyright, current law puts derived works under the same copyright. Expression of the same idea would be photos taken by a different photog of girls in similar positions and clothing, derived work is a reduced size version of a photo owned by Perfect 10.

This still doesn't get to the heart of the comparison to book search. Resizing the original and displaying the shrunken image in full is very different than showing a sample of a book - say one or two lines. The sample of the book would be the rough equivalent of showing a dozen pixels somewhere in the image.

IANAL

Re:Overturned by wiser heads

[Anonymous Coward]

The Fonestarz deal was done after the original lawsuit was filed by Perfect10, no doubt to pad it's case against Google.

Super-impose "Copyrighted" on the image?

[ponchoboy]

Why doesn't Google just super-impose "Copyrighted" on the thumbnail images? That way people really wouldn't want to use them for cell phones since they are distorted.

Re:Super-impose "Copyrighted" on the image?

[Animats]

Because Google doesn't own the copyright, and that would constitute a "false claim of copyright", a criminal offense.

Re:Super-impose "Copyrighted" on the image?

[RossumsChild]

Google's webcrawlers don't know the difference between copyrighted work and public-domain work. And to my knowledge the robots.txt spec doesn't give them a way *to* know easily.

I put lots of my photography into the public domain or up with a CC license when I post it to the web, I don't want people thinking they can't use it because some random (false) copyright notice is slapped on it by the indexing service.

Re:Super-impose "Copyrighted" on the image?

[whoever57]

Because Google doesn't own the copyright, and that would constitute a "false claim of copyright", a criminal offense.

How about superimposing the URL of the website from which Google downloaded the image?

Re:Super-impose "Copyrighted" on the image?

[Anonymous Coward]

I put lots of my photography into the public domain or up with a CC license when I post it to the web, I don't want people thinking they can't use it because some random (false) copyright notice is slapped on it by the indexing service.

If it's under a CC license, then it *is* copyrighted. And if it's public domain, well then you don't have any say over what Google does with it anyway :).

Re:Super-impose "Copyrighted" on the image?

[RossumsChild]

So wait, I can falsely add copyright notices to works in the public domain, like King Kong, that are defensible in court?

Awesome. I'm going to be RICH!

Robots metatag

[Anonymous Coward]

I believe Google will not index the site if there are metatag directives disallowing robots. What Google should do is start a policy of requiring metatags giving explicit permission to index the site. Google is so big at this point that if you aren't indexed in Google, you might as well not be on the internet at all. Porn sites and commercial sites will certainly want to be indexed by Google and give permission. Individual users may not bother though and we may see a dramatic decrease in the number of pictures of the family cat indexed in Google.

robots.txt?

[Spazmania]

Can't all of these web sites exclude their material from Google by using the industry standard robots.txt file? I know that doesn't apply to the book search, but it certainly applies to Perfect 10's web sites. If so, why is there any legal challenge to Google's web site search functions?

Re:robots.txt?

[rathehun]

yes, yes, slashdot and all, but please RTFA. The pictures were on a different website. Repeat after me, one cannot set a robots.txt on an external website.

Re:robots.txt?

[mikiN]

Book publishers have the means to exclude electronic searching as well, and have used this for as long as I know. (does that show my age?)
It's in the disclaimer, which almost all books I know have somewhere on the first few pages. Relevnt part of it reads (approximately):

"No part of this publication may be reproduced, either in part or in full, either photographically, electronically, or by any other means, without express permission of the publisher."

There you have it, the dead-tree equivalent of 'robots.txt'.

Re:robots.txt?

[Buran]

Yes, but there is also an opt-out that can be done using said robots.txt file and/or via Google's own website. Publishers whining and bitching and suing are just seeing the free-money aspect instead of sending someone to Google's page to do the five minutes of research that would yield how to fix the problem themselves, and for free without having to pay to file a case or pay lawyers.

It is yet another example of how out of control things are since it hasn't yet been made difficult or impossible to sue because you failed to prevent harm to yourself when doing so would have taken five minutes. It's like failing to fuel up your small plane, failing to check the fuel level if someone else fills it for you (which you should always do before takeoff regardless of who does the filling) and then suing the aircraft and/or engine manufacturers when the engine runs out of fuel, dies, and the plane crashes.

Whose fault is it but your own that you failed to ensure a safe situation? And yet all you care about is "I GOTTA SUE! SOMEONE IS GOING TO PAY!!!!11!!!" And who pays? The rest of us in higher prices of small aircraft, or decreased ability to find what we're looking for when we search for something.

The bar on lawsuits like this needs to be raised. And raised yesterday.

Re:robots.txt?

[rm69990]

OK, I've said this in about 1000 comments already...but...

Google was indexing these images from third party sites which had no right to show the images in the first place, not from perfect 10's servers. Please read the relevant articles before commenting again. Thanks!

(...smacks Spazmania with clue stick...)

Re:robots.txt?

[Spazmania]

Okay, so they're removed from the infringing site and one crawl later they're removed from google. What's the problem? Why is it in court?

Re:robots.txt?

[Cili]

If the external websites are afiliated with Perfect 10 they could ask them to use robots.txt; if not, they should go after the copyright infringers instead. It's not google's job to do their work for them.

Don't be distracted

[Anonymous Coward]

The essential problem hasn't changed. The term of a copyright has gone from 14 years back in 1790 when the first Copyright Act was passed, to, if we're speaking honestly, 70 years plus however long it's been since Walt Disney died.

Copyrights do no serve their original stated purpose of "promoting the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries". Now it's all about money.

I like money as much as anybody, but I like the progress of science and useful arts more.

Re:Don't be distracted

[argoff]

The AC is right, the debate shouldn't be wether Google violated fair use or not, the debate should be: how can we get rid of this beast called "copyrights" that doesn't belong in the information age.

Re:Don't be distracted

[Anonymous Coward]

Professional writers, painters, musicians, etc., deserve to be compensated for their efforts. Copyright can be used to defend the little guy against the big bully. Therefore, copyright can stay.

Re:Don't be distracted

[argoff]

Professional writers, painters, musicians, etc., deserve to be compensated for their efforts. Copyright can be used to defend the little guy against the big bully. Therefore, copyright can stay.

There are millions of people who recieve compensation for their work every day without controlling a monopoly over their output. In some theories copyright can be used to defend the little guy, but in practice, that is never the case. The reality is that copyrights can't survive the information age, but instead of wineing about it, people should learn how to make money from content services and not content controlls.

Re:Don't be distracted

[Anonymous Coward]

I don't agree with your opinions about taking away my rights to the content I've created. Please let me do what I wish with my creations.

Re:Don't be distracted

[argoff]

I don't agree with your opinions about taking away my rights to the content I've created. Please let me do what I wish with my creations.

You don't have rights to controll content you've created and more than you have a right to controll the ocenways because you peed in the ocean with your piss. You might have privacy rights if you never releases content you created to the world, you might have contract rights if you made a 2 way binding agreement with everyone who came across content you created, you might have plagerisim rights if someone claims they created something when you really did. But sorry, there is no such things as content rights. It is also hypocritical, chances are 98% of the content value you have was given to you freely, now you turn arround and say society owes you to controll content?

Copyrights are anti freedom, anti business, anti propertyrights. They destroy culture, education, and reward anti trust behavior. They really have no place in the information age, and their death will be long overdue.

Re:Don't be distracted

[Bloke down the pub]

Professional writers, painters, musicians, etc., deserve to be compensated for their efforts. Copyright can be used to defend the little guy against the big bully. Therefore, copyright can stay.

There are millions of people who recieve compensation for their work every day without controlling a monopoly over their output.

Indeed. And if their powers of logic are anything like yours, that work will probably involve a polyester uniform and a plastic nametag.

erm..

[Turn-X Alphonse]

I don;t think many people want 2 inch porn pictures. Something about being in public and a three pixel tall vagina doesn't seem very.. masturbation friendly..

Seems just an excuse to have a go at Google and get your name in the press.

Re:erm..

[Anonymous Coward]

HEY! My girlfriend has a three-pixel tall vagina is very masturbation friendly.

Re:erm..

[keraneuology]

Well, if your male member is only three pixels long in real life...

Re:erm..

[Anonymous Coward]

Of course if you read tfa you'd know that people were using them for their telephones and other portables.

Re:erm..

[TekGoNos]

I don;t think many people want 2 inch porn pictures.

Well, I dont know either who is crazy enough to pay for this, but I sure have seen a lot of ads for them on european late night TV.
Probably the same people who paid 3$ for a 8kbps ring tone 6 years ago and who are now old enough to buy porn. (Seriously, why are people ready to pay insane amounts of money for incredible bad quality, just because it's on a cell-phone?)

Re:not sure this makes a difference for book searc

[dustmite]

Sounds like Perfect 10 was able to show economic harm (lost sales to cellphone users)

I don't really see how this can be the case unless we're talking about people who accessed images.google.com via their cellphone. Otherwise they would have been using a PC anyway and hence would have had access to the images on the Internet, and would not have formed part of the (really odd or desperate or stupid) market who want to look at tiny little low-res porno images on their cellphone for exorbitant prices.

I thought the crux of the Perfect 10 case was that it wasn't fair use because the entire work was reproduced (just smaller). I don't see how this can apply to Google Book Search unless they plan to reproduce each book in its entirety in the search results (which of course would be stupid and impractical).

Re:not sure this makes a difference for book searc

[Anonymous Coward]

I believe one of the criteria for fair use is that it doesn't cause economic harm.

The impact on the market is considered as a factor, but it is by no means the only factor, and other factors can easily outweigh it.

Consider a book review that uses a few quotes from the book to show that it is utterly factually incorrect. That review could clearly cause significant economic harm, and yet it is still fair use because the other factors outweigh the impact on the market.

Re:not sure this makes a difference for book searc

[dustmite]

I somehow doubt that the original conceivers of copyright law intended for most of the world's works to be locked up in 'corporate vaults' never to see the light of day again because the estimated potential profits off of those works were considered too small to be worth it. But publishers, especially bigger ones, only seem to care about the most profitable mass-market stuff. Why don't they team up with Google to sell electronic versions of those books that are OOP? They could surely make a killing ... but perhaps those companies tend to be too conservative and risk-averse.

Re:not sure this makes a difference for book searc

[EvilSS]

Yea, you would think. Then again you would think that indexing news with a few lines of the text and a link to the site would be good for the news site. Seems many of them disagree. So much for logic.

Quite honestly I'm just waiting for search engines to be outlawed all together.

Google's twin evils - Copyright and Privacy

[Anonymous Coward]

Google sucks badly at Copyright and Privacy.

Who gave Google the permission to display Perfect10's images, taken from other websites ?

This problem is HUGEEEEEEEE.

Apply this to other data: Why does Google publish my address without my permission, from other websites ?

Opt-in will kill Google.

Re:Google's twin evils - Copyright and Privacy

[BeanThere]

Google can't "publish" anything that isn't already freely and openly available on the web.

Let me get this straight.

[richie2000]

If any other content owner manages to get indexed by Google they break out the champagne, but some author's association sue for the same kind of free marketing? Executive summary: Idiots.

This is the way it's supposed to be:
1. Create content
2. Get indexed by Google
3. ???
4. Profit!!!

But these numbskulls put "sue" in step number three and basically will never get to step four. Sounds like it's time for a class-action suit from their members against this so called "guild".

Re:not sure this makes a difference for book searc

[dustmite]

never to see the light of day again

Before some moron attacks that statement, yes I know copyright expires, the above is a figure of speech used as hyperbole.

Obligatory

[Bombula]

Constantine ... Jan Constantine ... a$$hole.

Re:Obligatory

[Anonymous Coward]

Constantine ... Jan Constantine ... a$$hole.

Yeah. I think i've seen a picture of him on the internet and I can confirm he's got one of the biggest. It wouldn't even fit on a cell phone screen.

google bans first url worldwide

[Anonymous Coward]

how did this story get missed by the rights/freedom conscious crowd here at /.
  Google Imposes Worldwide Ban On China Critical Website

http://www.spacewar.com/Google_Bans_Australian_Bas ed_Military_Space_News_Website.html

there must have been enough of a stink raised, not from the slashdot crowd, because google relisted it

Missing pieces of information

[NigelJohnstone]

There's missing a key point:

Perfect 10 blocked Google from indexing the site.
Third party copied the content and put it on their own site.
Google indexed that third parties site (not perfect 10's) compounding a existing copyright violation.

Whereas the book publishers can simply tell Google which books they don't want scanned and so they've given implicit permission by refusing to list those books.

Since fair use is a value judgement made by a judge interpreting a vague law, he sided with Perfect 10, but the same situation doesn't with the book publishers.

Re:Missing pieces of information

[MooUK]

Google had no way to know whether the images they were indexing were legal or not - and, frankly, I don't see how it's their responsibility to do so.

Re:Missing pieces of information

[mcubed]

Whereas the book publishers can simply tell Google which books they don't want scanned and so they've given implicit permission by refusing to list those books.

Do you actually own any books? Here's a typical line from the copyright page of one of mine:

"All rights reserved, including the right to reproduce this book, or portions thereof, in any form."

Seems to me the publishers already have told Google which books they don't want scanned, in no uncertain terms.

Michael

Re:Missing pieces of information

[Anonymous Coward]

Apparently Perfect 10 has NOT blocked Google from indexing the site, they have no robots.txt and there is a copy on Google's cache:
http://www.google.com/search?q=cache:3-9wPdoLf2sJ: www.perfect10.com/+&hl=en&ct=clnk&cd=1&client=fire fox-a

Re:Missing pieces of information

[Buran]

An automated program can't tell what should be on a site and what shouldn't. Google is not at fault here; if a third party copies the files, that third party is the one who should be on the receiving end of a takedown notice or a lawsuit. THAT is what the DMCA can be fairly used for, not for strangling the rights of people who just want to use things they paid for.

Google just has deeper pockets, so they were hit instead due to the "I want free money!" attitude so prevalent in the US today.

I'm waiting for Google to appeal. They sorely need to.

Re:Missing pieces of information

[TekGoNos]

Has anybody more information on this case?

Of course Google infringed on Perfect 10's copyright by showing these images.

So was it that :
A) Perfect 10 complained to Google about it and Google just said : "fair use, so get lost" and Perfect 10 had to sue Google to enforce his copyright?
or
B) Perfect 10 saw these images and decided to sue Google because Google has money but the guys who really infringed his copyright (the sites which published to images) had none?

In case A, Google is at fault for not removing copyrighted images, but in case B, while still infringing on Perfect 10's copyright, Google could claim due diligence, stating that they assumed the pictures to be publicly available because they were, duh, publicly available on the rogue sites.

And on a side note, the book publishers are stupid. This case only shows that, while in general reduced quality previews (thumbnails) are fair use, there are special cases (the mobile market) were they arent because the publisher makes money from them. It doesnt proove that no reduced quality preview falls under fair use. So, as long as they cannot prove that they to, make money from book snippets, they will loose.
(Of course, they may make a RIAA, offering text snippets on cell-phones, then claim that nobody buys them because of these Google pirates; completly ignoring that nobody would buy text snippets from books on his cell-phone anyway ...)

Re:not sure this makes a difference for book searc

[mcubed]

I somehow doubt that the original conceivers of copyright law intended for most of the world's works to be locked up in 'corporate vaults' never to see the light of day again

The publication rights of OOP books revert to the author. The OOP books aren't sitting in publishers' vaults; they are sitting in the hands of the authors, unexploited. If the authors want to resell the publication rights, they can do that. If they want to self-publish, they can do that. If they want to make the arrangement with Google you posit, they can do that too. The position of the Authors' Guild in the lawsuit is that Google shouldn't have the right to copy authors' books without first getting permission.

As always in these cases, the issue is control. The authors and publishers want to maintain control over who can do what with their books. Ultimately, I think the question for the courts to consider is whether the social benefit of having books searchable trumps the deference usually given to authors' copyrights.

Michael

Thumbnailed books

[Anonymous Coward]

Are they finally selling thumbnailed books for my cellphone? I've always dreamed of beeing abled to purchase tiny scans of books to read them no my cellphone.

Google were told

[NigelJohnstone]

No, they were told. From what I read they ignored the complaint.

http://www.chillingeffects.org/dmca512/notice.cgi? NoticeID=1328

"Sent via: fax
Re: Customer Support DMCA Complaints
We have discovered a massive misappropriation of Perfect 10 images and images belonging to third parties on websites that appear in Google indexed listings. This situation is very serious as consumers can view essentially the entirety of the Perfect 10 library over and over without paying anything by utilizing Google search. Consumers can also see thousands of high quality third party copyrighted images without charge, which makes the situation even more damaging for our company."

"Perfect 10's copyrighted works which have been infringed can be found in Perfect 10 Magazines and/or on its subscription website at www.Perfect10.com. If you wish to examine such copyrighted works, we can provide you with a temporary username/password with which you may do so. Specific volumes of Perfect 10 Magazine, issue number, and page number on which most of the copyrighted pictures can be found are set forth below."

Yet some publishers are happy

[NigelJohnstone]

"Do you actually own any books?"

Yes, you bought it, tacked on terms are irrelevant. (IANAL)

"Seems to me the publishers already have told Google which books they don't want scanned"

* Yet that clause was put in those books prior to Google Book search existing, so it couldn't have been written with Google in mind.

* It fails the 'is this contract fair' test too, since the courts have repeatedly rules that you can reproduce portions of the books and it's fair use.

* The book publishers tolerate extracts in book reviews without complaint, and without attempting to enforce this clause, indicating acceptance of the worthlessness of this clause.

* Finally, some publishers are not complaining about Google Book Search, and their books have that clause, which suggests the first point is true (that that clause was not intended to block benefitial use).

So it's perfectly reasonable for Google to ask the publishers which books they don't want indexed by Google Book Search and a judge will find in their favour I reckon.

Re:Yet some publishers are happy

[stubear]

* It fails the 'is this contract fair' test too, since the courts have repeatedly rules that you can reproduce portions of the books and it's fair use.

Google isn't reproducing portions of the book, they are merely presenting portions of the book at any given time during a search. It is highly likely that the search engine itself could be considered a violation of copyright on this point alone.

* Yet that clause was put in those books prior to Google Book search existing, so it couldn't have been written with Google in mind"

Doesn't matter, and I can't belive anybody would even make this argument.

* Finally, some publishers are not complaining about Google Book Search, and their books have that clause, which suggests the first point is true (that that clause was not intended to block benefitial use).

Again, it doesn't matter. Copyright awners are welcome to enforce their copyrights as they see fit. If a publisher is ok with Google indexing their books then perhaps Google should have asked in the first place.

So it's perfectly reasonable for Google to ask the publishers which books they don't want indexed by Google Book Search and a judge will find in their favour I reckon.

This was the argument the publisher's guild made when Google first presented this idea. Google didn't want to build their index this way and they went ahead without first securing permission.

Re:Yet some publishers are happy

[mcubed]

Yes, you bought it, tacked on terms are irrelevant. (IANAL)

Copyright is not a "tacked on" term. It's law. Copyright is not a license, shrink-wrap or otherwise. Copyright gives the copyright holder the right to determine who can make a copy. Anyone the copyright holder does not designate as authorized to copy is, by default, not authorized to make a copy. The only exception to this is copying that falls under fair use.

* Yet that clause was put in those books prior to Google Book search existing, so it couldn't have been written with Google in mind.

Like I said, anyone not expressly authorized to copy is not authorized to copy. Do you think that copyright only applies to people or corporations who were alive/existed at the time the copyright went into effect? If that were the case, I could freely copy anything published before I was born. But I can't, not legally.

* It fails the 'is this contract fair' test too, since the courts have repeatedly rules that you can reproduce portions of the books and it's fair use.

What contract? There's no contract.

* The book publishers tolerate extracts in book reviews without complaint, and without attempting to enforce this clause, indicating acceptance of the worthlessness of this clause.

No, excerpts used in book reviews are fair use. The courts determined that a long time ago. There are many authors and many publishers who would love to be able to prohibit use of excerpts in some reviews -- specifically, in negative reviews. But they can't, because it's fair use.

* Finally, some publishers are not complaining about Google Book Search, and their books have that clause, which suggests the first point is true (that that clause was not intended to block benefitial use).

The fact that some publishers (and authors) are happy to participate in Google Book Search doesn't compel those who aren't happy to participate. Some software authors open-source their product, others don't. Some authors actively use a Creative Commons license, others don't. In all these cases, just because some do doesn't mean others have to.

I think the real sticking point for authors and publishers is that if Google can do this, then anyone can. That seems to be what they're afraid of, and as much as I would like to see Google go forward with Book Search, I think their fear is reasonable. So Google will only display a small piece of the text. What happens when the next Google decides it will display a paragraph, and the next decides it will display a page, then a chapter? And how does any given author make sure that a work he doesn't want included in any of these programs -- Google's and its imitators -- keep track of them all? Should it really be the author's responsibility to police the Internet making sure that no such index is including his work? Would it be fairer if the indexer had to get permission first? That's what Yahoo is doing -- opt-in, not opt-out.

Michael

Re:Yet some publishers are happy

[NigelJohnstone]

"Copyright is not a "tacked on" term. It's law. "

That comment in the book isn't the definition of copyright law. Copyright law permits reproduction of the book or portions thereof if it comes within fair use and other provisions, so that clause goes beyond copyright to restrict the rights further.

"Like I said, anyone not expressly authorized to copy is not authorized to copy."
See above. You can copy portions (even the whole thing in some cases) if its fair use. Under that circumstance you don't need permission. This is what Google are claiming in the book publisher case.

"What contract? There's no contract."
If that statement in the book isn't the definition of copyright law then it follows its nothing more than a request or attempt at aftersale contract. So the extension of copyright (refusing all permissions including those covered by fair use) has to survive the 'reasonableness and other tests'. Without that only copyright law applies and fair use is permitted.

You asked if you own the book and you do. That clause doesn't change that.

"No, excerpts used in book reviews are fair use. The courts determined that a long time ago. "
And excerpts in a search engine will be decided likewise!

"The fact that some publishers (and authors) are happy to participate in Google Book Search doesn't compel those who aren't happy to participate."

The opt out is consistent with this case and DMCA. Recall in this case Perfect 10 first of all followed the correct DMCA process and REQUESTED GOOGLE REMOVE THE IMAGES FIRST.

There are 2 parts to Googles system.
Fair use - they have the right to do this if it's fair use.
In addition Google is offering an additional PRE-opt out, which isn't necessary but will count in their favour in the eyes of the Judge. All a publisher has to do is say "don't scan this list of my books" and the matter is ended.

You are arguing that that statement in the book constitutes a REQUEST to Google to opt out. But it can't be because it was written prior to GBS even existing. I use the word REQUEST because the pre-opt out isn't necessary if Google are under fair use.

"What happens when the next Google decides it will display a paragraph, and the next decides it will display a page, then a chapter?"

The judge will decide that on a case by case basis. There will be some point at which a judge decides its beyond fair use, but this isn't it.

"Would it be fairer if the indexer had to get permission first? "
From who? There are a huge section of books from out of business publishers and whose current copyright owner can never be determined. This is the big difference here and the whole reason I think the publishers are doing this.
I think they want to use copyright to suppress those out of print books to reduce competition.

I don't really understand this...

[Jugalator]

By far most material Google indexes and shows previews of is copyrighted.

You get text fragments of copyrighted content as part of textual searches.

You get reduced-size images as part of image searches.

If the former falls under fair use, and reduced images generally do as well, why wouldn't it this time?

Re:not sure this makes a difference for book searc

[Jivha]

"If I were Google, I would just drop perfect 10 from their search results entirely. I bet this would lose them more sales than thumbnails ever would."

Yeah sure, that would work. I'm sure Google going, "you mess with us, you're off the grid" is just the news that the ever-increasing number of people wary of Google's growing clout are just waiting for.

What next? Google removing Reporters without Borders from their index because they complained about their China policies?

I don't think that's important

[NigelJohnstone]

The premium content is behind a login and a search suggests it is blocked, only public and tour pages are shown in the search results. So I don't think its important how they blocked Google indexing that content, only that they did.

Put it this way, is there a benefit to the copyright holder from Google indexing that data?
In the case of books, yes because it [arguably] promotion and aids in researching of books.
In the case of Perfect 10, no because the site being indexed isn't the copyright holder, its a pirated copy. So no benefit can be argued (IMHO).

Re:not sure this makes a difference for book searc

[keraneuology]

It sounds like Perfect 10 doesn't want to be indexed by Google anyway. Google indexed them (and they probably never set up the robots.txt file anyway so it is their own bloody fault) and they sued.

Considering how easy it is to prevent your site from being indexed, with this precedent I'm sure there are already people planning to "forget" to copy/paste "User-agent: Googlebot-Image Disallow: /" into a robots.txt file with the intention of suing Google over the included images.

Note to the authors...

[tkrotchko]

With apologies to Oscar Wilde, "The only thing worse than being indexed by Google is NOT being indexed by google".

What google ought to do is *not* index these authors; these guys really are so goofy they don't understand what a boon this will be to them for people to get to their book, read a few sentences and then jump over to an online bookstore and buy it. Instead, they'll have to be content with a few sales here and there. Then they can go to their guild meetings and bitch about how the country is becoming illiterate.

Its like they're so greedy for a nickel here that they can't see the 10 dollars that is coming tomorrow if they're just patient.

Re:Note to the authors...

[enjahova]

The problem is, Google doesn't want to be limited by these nickel-and-diming authors. They want to make all information available. No matter how big we think Google is, they won't be able to spite their way to success. I really don't think an internet company could last by abusing its supposed monopoly powers on people it disagrees with, someone else will come along and do what they were to "good" to do. What google needs is to prove that what they are doing is fairuse, which is still a big question.

Idiotic comparison

[JoeShmoe]

Are all authors this stupid, or just the ones they hire to be their spokesman? If he's straining for some court precedent that would help their case, there is little point in just trying to grab every case just because in involves Google.

In the case of Perfect 10, Google was taking full size images and scaling them down to miniture size, which Perfect 10 argues was what they are doing by selling their images for use on mobile phones. First of all, Perfect 10's arguement is utter baloney. What is this secret technology that lets you resize images? It's available in EVERY SINGLE Windows computer that's been sold in the last twenty years via MSPaint. Not to mention, Google resizer is hardly what people would consider the right quality. Not to mention, the odds of finding a thumbnail the exact size of your mobile screen is about 1 in 1,000,000. Not to mention, the number of mobile phones that will let you add your own content from your computer is fast dwindling as the mobile carriers grow dollar signs where their eyes used to be and realize by cutting off file transfers (cough-Verizon-cough) they force people to pay for their overpriced content.

So anyway, Perfect 10's argument is total crap, and of course the technically illiterate judge didn't see that. Now this author's "Guild" -- "Guild"? As if modern money-whoring author (cough-James Frey-cough) has anything in common with the noble line of authors in centuries past who wrote for love or humanity or education -- anyway this "Guild" thinks that the ruling gives them a victory when it's a complete apples vs oranges situation. You can't search for "part" of an image. There's no way to run a Google image search of "all arms 18 inches long with four finger" and get back "summaries" of all the photos that match so you can then you know some names to research in your quest for that four-fingered midget for your next film. Maybe someday, and then there might be a comparison. But then, as now, I would expect any sane court, not blinded by copyright cartel false arguments, to realize that this doesn't impact the ability for the publisher to control his or her content...it only impacts the ability for the average public to FIND OUT about the content.

The odds that someone would run 1000 Google book queries to manually stitch together a single copyrighted book from each search snippet is about the same odds that someone finding a 100x200 thumbnail on Google will use it to redraw the original 1024x2048 image. It's an absurd argument and I'm dearly hoping this one goes the right way for Google. I think that if it does end up happening, and older book sales shoot through the roof because of all the people finding books on subject they never knew existed, there should be some law that lets Google sue them for the ill-gotten profits gained from Google's hard work.

Think about it. If the VCR was such a threat to the movie industry, who fought its very existance, then shouldn't the profits being made now belong to the VCR industry who wanted it and not the movie industry who didn't? If the copyright cartels were presented with the choice of fighting a technology and losing out on the future profits it might generate...there is no way they would take that gamble.

-JoeShmoe

Re:Idiotic comparison

[Kirkis]

The odds that someone would run 1000 Google book queries to manually stitch together a single copyrighted book from each search snippet is about the same odds that someone finding a 100x200 thumbnail on Google will use it to redraw the original 1024x2048 image. It's an absurd argument

I totally agree that it is absurd but I'm pretty convinced that it *is* theorically possible to look for different parts of a book to reconstruct the whole. Thing is, you won't ever know which terms to look for and that is what makes it impossible. Should you have all the different parts of a text, you might be able to rebuild the original full text from them. Should you have the whole Web backed up on your [insert storage device here], you would be able to look for these exerpts. Of course, it would not be done by hand but rather by bot.

If you had all the parts of a bigger picture, however, and they were of poor quality (as is usually the case with thumbnails), you would never be able to scale them to their better quality sample, even though you should be able to guess what the image should look like by assembling the parts together.

Re:Idiotic comparison

[Kaetemi]

Thing is, you won't ever know which terms to look for and that is what makes it impossible.

It is possible. Just search for the page number, rip the link to the image of the page, remove the search query from the link, and you have their clean jpg scan.

Sounds like rationalization to me

[TubeSteak]

Whereas the book publishers can simply tell Google which books they don't want scanned and so they've given implicit permission by refusing to list those books.

Whereas the people can simply tell advertisers which phone numbers they don't want called and so they've given implicit permission by refusing to list those numbers.

Yes? No?

Personally, I fucking hate things that are Opt-Out. As one post pointed out, books already have their own version of robots.txt

Don't forget that "Fair Use" is an affirmative defense. By claiming fair use, you're saying "Yes, I violated your copyright." Now Google is being asked to prove it, or stop.

Just because you like Google, doesn't mean you should invent rationalizations for their behavior. Either it is legal, or a Judge will put them in their place.

I've commented on this before and recieved some good feedback. I think the best response was from bit01 who says: Copyright is "To promote the progress of science and useful arts".

Re:not sure this makes a difference for book searc

[BeanThere]

The publication rights of OOP books revert to the author. The OOP books aren't sitting in publishers' vaults; they are sitting in the hands of the authors, unexploited.

Hvae you actually seen the contracts that authors typically have to sign with publishers?

GBS is promotion

[NigelJohnstone]

"As one post pointed out, books already have their own version of robots.txt"

See my comment above:
http://yro.slashdot.org/comments.pl?sid=178558&thr eshold=0&commentsort=0&mode=thread&pid=14804026#14 804075

"Just because you like Google, doesn't mean you should invent rationalizations for their behavior."

See my comment above, I think Google are *wrong* in the Perfect 10 case and *right* in the Google Book Search case and that the two situations are not comparable for the reasons I outlined in the above comments.

'bit01 who says: Copyright is "To promote the progress of science and useful arts".'
What is search if it isn't promotion!?

Re:GBS is promotion

[Baricom]

Yet that clause was put in those books prior to Google Book search existing, so it couldn't have been written with Google in mind.

So Google can also check the timestamp of every robots.txt file it downloads and ignore any dated prior to 1998? Can I ask the local Wal-Mart when they posted the No Shoplifting signs in their dressing rooms, and ignore any that were there before I was?

It fails the 'is this contract fair' test too, since the courts have repeatedly rules that you can reproduce portions of the books and it's fair use.

Google is not reproducing "portions" of the books in question - they're reproducing the entire book, cover-to-cover. That they allow the public to see only a couple sentences at a time is irrelevant.

The book publishers tolerate extracts in book reviews without complaint, and without attempting to enforce this clause, indicating acceptance of the worthlessness of this clause.

The clause is a reminder that the copyright holder has certain rights guaranteed by the law. It's not worthless because in a copyright infringement case, the attorneys can show the book as evidence, point to the clear warning, and prove that there was no doubt as to the copyright holder's intentions.

The book publishers tolerate fair use, but that clause isn't supposed to stop fair use, and Google isn't engaging in fair use.

Finally, some publishers are not complaining about Google Book Search, and their books have that clause, which suggests the first point is true (that that clause was not intended to block benefitial use).

The clause doesn't need to be intended for Google. It's clearly an open restriction to anyone - it says the publisher or author will enforce the rights. It works just like a "No Shoplifting" sign - it's not addressed solely to some class of people that were alive when it was posted. In any case, the fact that some publishers aren't complaining isn't much evidence. Presumably, those same publishers would happily opt-in to Book Search if Google had a sudden inspiration of non-evilness and decided to do things the right way.

What is search if it isn't promotion!?

You should re-read the clause you cited. It says "promote the progress." The question is whether Google will cause more people to write books with this program. I don't - I think that instead we'll see publishers spending a small fortune on forcing Google to switch to an entirely reasonable model of asking nicely before they rip and distribute millions of copyrighted books.

Re:GBS is promotion

[NigelJohnstone]

"So Google can also check the timestamp of every robots.txt file it downloads and ignore any dated prior to 1998? Can I ask the local Wal-Mart when they posted the No Shoplifting signs in their dressing rooms, and ignore any that were there before I was?"

Under fair use, they don't need to ask permission, if the copyright holder disagrees they can sue and a judge decides if it is or isn't.

Google offer an additional PRE-opt out. This is BEYOND what they have to do if their indexing is fair use.
A request under that system is just a *request*. My points were that the statement in the book is neither the definition of copyright law (which permits fair use) nor a request under Googles additional PRE-opt out system, since it was written prior to Google Book Search and so could not have been written with the intent of opting out to GBS. As evidence that that statement can't be considered a request to opt out of Google, I pointed out that GBS didn't exist, and that some people who have that statement in their books wanted GBS to index their work. I also ruled it out as some sort of pseudo agreement between reader and publisher.

"The question is whether Google will cause more people to write books with this program."
I think the words are "To promote the Progress of Science and useful Arts". i.e. promoting researchers that use the book is also covered. But I also think their book search will be terrific for book authors because promotion results in sales and sales are monetary inducement to make new works. Google sends visitors to websites and that results in sales (so much so the SEO industry was created), so it does have positive benefits.

Re:GBS is promotion

[generic-man]

Congratulations, Mr. Johnstone! I'm about to start sending thousands of exclusive, exciting offers to you by e-mail. If you do not wish to receive these offers, use our exclusive pre-opt-out function. Failure to respond in the next 7 days constitutes your consent to receive these exclusive offers!

Re:GBS is promotion

[fyngyrz]

I take the humor, but what you're really arguing here is that opt-out is, by its nature, a bad thing. That's not always the case. Consider the following hypothetical:

Imagine you are with a friend, and he drags you into a room of a fair number of other people you have never seen before, that you did not expect to be in, and...

...just as you walk in, someone up on stage begins to give $1000 to each of the people in the room. Unless you have opted-out. It's too late to opt-out. Or...

...just as you walk in, someone up on stage begins to give $1000 to each of the people in the room. Only people in the room who have opted-in will receive the money. It's too late to opt-in.

The situation is that you have not opted in or out. You just arrived, and you just barely came to the understanding that money is being given away.

So: Which room would you rather have arrived in?

My point is that opt-out is evil only when it is the only way to get out of something you consider to be evil in and of itself, SPAM being the obvious poster-child for inherently evil crap no one in their right mind would ever opt-in for. The question here, in regard to opt-out and google's book indexing program, is, do you consider what google is doing to be harmful?

The answer in this specific case is unclear. Some members of the literary community (e.g. author Cory Doctorow) are all for the process, thinking it may help sell more books, and other members (e.g., literary agency owner, me) are against it because it gives up a right that the author did not exclusively release (indexing), which is not how publishing contracts work: All rights that are not specifically contracted to the buyer are withheld by the author. This is the basis for any number of new channels for income to authors. In my opinion, book publishing is in enough trouble without further weakening forces being applied, but of course, my opinion is not definitive, nor is Mr. Doctorow's: That's where the courts step in.

The courts really need to rule on this; it is not a given either way, and I consider it entirely a good thing that the AG has sued and that there will be a definitive decision rendered (eventually.)

This is a typical case of new technology not being well anticipated by old law. So we need new law, or at least, new interpretation of old law.

Re:GBS is promotion

[generic-man]

Google has built one segment of their business, the cache, with the mentality of "opt out unless you want this feature." As a result businesses that would normally charge to access back content (magazines, newspapers, etc) have to actively get themselves taken out of these archives. The Wayback Machine is another example. These tools are both extremely useful, but I don't believe that there is a right to duplicate anything ad infinitum just because it was once available for no charge. That's the difference between public domain and copyright, a difference precious few people around here* seem to understand or respect.

* This thread being a pretty significant exception, but otherwise I tend to avoid the YRO section for reasons such as this

'it took the wind out of their sail'

[someone1234]

Yeah, the mobile book sales are such a big business... LOL.

Not clear if....

[NigelJohnstone]

...you are agreeing or disagreeing with me.

"Copyright awners are welcome to enforce their copyrights as they see fit."
If that was the case, MPAA would have successfully killed Betamax, it isn't, they don't have a free hand.

You should re-read the last sentence in my comment since it doesn't say what you think it does. The point being if we had to get permission for every use of copyrighted material (which is all material since copyright doesn't need to be declared) the world would grind to a halt, you wouldn't be able to quote my post in your reply, for example, without securing permission first.

Re:Not clear if....

[stubear]

You DO have to get permission for every use of copyrighted material UNLESS it falls under the protection of fair use, which has a very limited scope ad doesn't cover what many slashbots think it covers.

As for the metamax comment you made, well, I'm not even sure why you made it. Betamax is technology and the courts ruled that the technology itself wasn't enough to prove infringement or even contributory infringement. The MPAA could still sue people who used betamax tapes to infrige copyrights, or not if they felt the pirating of their intelelctual property wasn't that big a deal.

In short I'm disagreeing with you because your arguments fail any basic understanding of copyright and intellectual property law.

% of information

[hackwrench]

Most thumbnails don't contain 100% of the information of the full size image, which is why they load faster and why Microsoft has set Windows XP to generate and cache them by default, which is one of the things I hate about XP, btw.

You quoted his post

[Anonymous Coward]

"only sites which explicitly request their images to be searched and can prove valid copyright."

You just quoted his post, without explicit permission.

Re:You quoted his post

[Anonymous Coward]

Actually when you sign up for Slashdot you sign away all rights to content which you post. You would have known that if you'd bothered to read the terms of use - but how could I be so niave?!

Of course someone like you who believes in "freedom" can't be bothered with pesky laws. Especially if those laws threaten to take away your "right" to be a freeloading asshat cybersquater.

OOP and copyright expiration

[hackwrench]

Of course by the time the copyright expires, the books taht are in the wild have succumbed to the ravages of time because they were all low quality prints.

Intellectual Garbage

[xeer0]

The bottom line is that the United States is going to go down the tubes squabbling over "Intellectual Garbage" while other countries prosper because they are unencumbered by this foolishness and enjoy the benefits of more open information sharing.

Re:Intellectual Garbage

[pembo13]

Frankly, I wish Goodle would move their office to my country. I'm sure we could organize for less legal problems and taxes for them.

Re:Intellectual Garbage

[mumblestheclown]

It must be quite a liberating feeling living as you do, unencumbered by actual facts or knowledge.

To those of us who live in the real world and know a bit about basic economics, we can show you unequivocally and without question, and beyond any reasonable doubt whatsoever, that history has shown us time and time and time and time and time again (so much so that you are basically arguing the intellectual property version of creationism while I'm duly reciting the basic tenets of evolution here) that countries with relatively stronger IP systems, including the US and Western Europe, have historically created more intellectual property and have made more progress advancing the "useful arts" than those that don't. Does this apply to Christina Aguilera and Mickey Mouse? Sure. But it also applies to pharmeceutical development, industrial production methods, and other things that adults concern themselves with while you're off in your bouts of postmodernist "deep thought" in between counterstrike sessions.

Re:Intellectual Garbage

[typical]

It must be quite a liberating feeling living as you do, unencumbered by actual facts or knowledge.

You *do* realize that we're talking about *porn thumnails* here? Is society so fragile that it will crumble if someone displays a tiny preview of the porn on your site?

And you don't think that the benefits of having a vast index of all the image content on the Web makes that tradeoff worthwhile? I'm amazed, I really am.

To those of us who live in the real world and know a bit about basic economics, we can show you unequivocally and without question, and beyond any reasonable doubt whatsoever, that history has shown us time and time and time and time and time again (so much so that you are basically arguing the intellectual property version of creationism while I'm duly reciting the basic tenets of evolution here)

Oh, nice. Slip creationism in. How about you also call him a Nazi? ...that countries with relatively stronger IP systems, including the US and Western Europe, have historically created more intellectual property and have made more progress advancing the "useful arts" than those that don't. Does this apply to Christina Aguilera and Mickey Mouse?

Except up until recently, our IP systems were a lot weaker than they are today. You couldn't patent algorithms, and copyright was far shorter.

Or maybe you refer to the last few decades, when the *rest* of the wealthy world had been clobbered by (a) worldwide war and (b) revolution? Your example comes down to "The United States is rich, and recently they extended the reach of IP, so IP must be good."

Sure. But it also applies to pharmeceutical development, industrial production methods, and other things that adults concern themselves with while you're off in your bouts of postmodernist "deep thought" in between counterstrike sessions.

Well, I've never played a game of CounterStrike in my life, I'm certainly an adult, and I would strongly favor a returning of IP to its original status -- no software patents, and 14+14 year copyrights.

I'd argue that you may just not be comfortable with such an idea, because it's different, opposes a lot of things that you've gotten comfortable with and been taught.

Re:Intellectual Garbage

[mumblestheclown]

You *do* realize that we're talking about *porn thumnails* here? Is society so fragile that it will crumble if someone displays a tiny preview of the porn on your site?

Sigh. No, we're talking about a general and important cornerstone principle of the economy. Stop trying to marginalize on the central issue being debated by focusing on the relative trivialiy of one particular piece of covered subject matter.

And you don't think that the benefits of having a vast index of all the image content on the Web makes that tradeoff worthwhile? I'm amazed, I really am.

I dont doubt that there are benefits to having such an index. I also dont doubt that that there are benefits to chop down all the trees in the world today to make shelters and saunas for the homeless. However, every benefit must be weight against loss and alternatives. Rulings of "fair use" have been remarkably consistent and reasonable, despite the nonsense that you might hear on slashdot: yes, you CAN make an index that points to things. However, no, you CAN'T do it in such a way that eliminates the need for the thing being pointed to.

The rest of your post is churlish ad-hominem. Fuck off.

Re:not sure this makes a difference for book searc

[LiquidCoooled]

Perfect 10 didn't want their copyrighted images being returned by google even when those images are not hosted on the perfect 10 servers.

This is not a control issue for the perfect 10 domain.

open email to Mr. Lessig

[bismark.a]

Dear Mr Lessig,

I saw your presentation on Google Book Search and Fair use on Google Video website. http://video.google.com/videoplay?docid=5100194058 815018708 First I would like to say that the presentation was impressive and you have put across your points very well.

But I have one question about the Fair use argument that you put forth. This question is about the "Original copy authorization" argument to Google caching a digital version of huge number of in-copyright books from libraries. Tell me this, if Google today is permitted to cache digital copies of books from libraries for their reasons, what stops the general public from doing the same? After all it is not very hard to setup such a digital index for a few books. And if an individual sets-up a public website like Google for those few books then he would never need to buy any books as long as they can be cached from libraries for their "public" websites.

Now how is the scenario of individuals setting up public websites from cached books from libraries essentially different from Google doing the same in terms of fair use? Meanwhile in the guise of this fair use everybody would scan their favourite books, setup dummy Book search fronts and enjoy their digital content from libraries for free. What protection would Authors and content producers have from such misuse? Remember the rate at which technology is advancing would make such tasks effortless, as in most probability they already are.

I would love to hear your response to my question.

wtih best regards,

Re:open email to Mr. Lessig

[babbling]

I'm not Lawrence Lessig, but what you suggest is an unreasonable scenario. No one would ever go to all that trouble just to copy a few books.

That's like suggesting that serial killers could go out and find drunk people who will attack them, so that they can claim they killed in "self-defence".

Re:open email to Mr. Lessig

[bismark.a]

No one would do it now. But what if in a few years robots could digitize print content in a jiffy? Primitive search websites can already be built NOW using digital content easily.

Anyway my question is not regarding who does what and how but what reason justifies the original copy authorization, as in Google's case? And what mechanism can ensure that such vastly overriding permit(?) is not misused ??

Since posting this, I have received a reply from Mr. Lessig and his view is "fair use depends upon the use, not upon what is stored where. So in your example, if someone stores everything to read, that's more than the use Google is offering. If they store it to do the search google does. Then that's fine. "

Problem with that is how can this be monitored, once the original copy has been digitied and indexed without content creator's authorization? I think this angle has to be carefully considered before allowing Google or anybody else to make a copy without an explicit authorization from the content creator.

So Where Are The Images?

[Nom du Keyboard]

So where are all the images? Type "Perfect 10" into Google Images and you're not exactly swamped with hits that look like free pictures from their photo library. Where are they finding them?

And I wouldn't ask Google to remove the term "Perfect 10" from all searches because that term was in general use long before this magazine came along and tried to own it.

Perfect 10 should be using the DMCA takedown provisions against web-sites that they feel violate their copyrights. Google is just too useful to the rest of us to let some company hobble, and should be covered by Safe Harbor provisions anyway.

In fact, the only reason they even have a case against thumbnails is this cell phone thing, which seems a red herring sort of argument to begin with. Kind of like, thumbnails are fair use, so lets start selling thumbnails and we'll have a case in court after all.

If it ever came down between seeing Perfect 10 or Google disappear, I know who I wouldn't miss at all.

Re:not sure this makes a difference for book searc

[mcubed]

Hvae you actually seen the contracts that authors typically have to sign with publishers?

Yes. Seen them, negotiated them, even. Reversion of rights is pretty much industry standard in trade publishing. It wouldn't pertain in work-for-hire situations, but that's not the norm.

Publishing industry=!music industry. Authors ordinarily retain their copyrights.

Michael

no google images pr0n? n000!

[CommunistHamster]

Now how are we meant to see whats good and whats not before we chance our machine by going to pr0n sites?

One question:

[gidds]

Would Perfect 10 have known about the copyright violation had not Google indexed it?

Google's indexing seems a double-edged sword: it doesn't just let prospective users find illegal material, it also lets those with an interest (copyright/patent/trademark holders, law enforcement) find it too. So you might consider it an impartial, disinterested* process. Maybe on those grounds alone, we should consider linking to illegal material qualitatively different from providing/hosting it.

(* Though not necessarily uninterested!)

Re:not sure this makes a difference for book searc

[pembo13]

Well assuming I have th ecorrect Perfect 10, the following url : http://www.perfect10.com/robots.txt gives Not Found The requested URL /robots.txt was not found on this server.

I think you should read this

[NigelJohnstone]

"THAT is what the DMCA can be fairly used for,"

Read this:
http://www.chillingeffects.org/dmca512/notice.cgi? NoticeID=1328

From what I read about the case Perfect 10 served a DMCA request, Google ignored it, Perfect 10 sued, Google lost.

Is this not what happened?

Re:I think you should read this

[Buran]

Oh, no, you misread my comment, or I wasn't clear, or both.

It's the people who stole the images that need to be served with the complaints. Not the search engine that is merely recording what it finds as long as it's been given permission (Google does obey robots.txt).

The search engine isn't playing a part in this beyond doing what it's designed to do. It's like claiming, if I worked as a checkout clerk at a grocery store, for allowing someone to purchase some good that wasn't authorized for sale at that store. I merely did what I'm paid to do and assumed that the item was legitimately offered for sale; I'm not the one responsible for checking that.

Stupid ruling

[tm1rules]

If the images are publicly available, that is the website's own fault. If you don't want your images indexed, then simply make it difficult to access the images!

I think Google were in the wrong with P10

[NigelJohnstone]

"The search engine isn't playing a part in this beyond doing what it's designed to do"

I think Google were in the wrong with Perfect 10, because the search engines right to index the work is covered by fair use, fair use includes such factors as benefit/loss to the copyright holder.

When Google indexes a site that has the copyright, there is a benefit to the copyright holder. When it indexes a site that is a pirate, there isn't, the pirate benefits instead and the copyright holder, so Google loses their fair use cover in that case.

That's why I think they lost (rightly so I think).

Re:I think Google were in the wrong with P10

[Buran]

But, as I have said in other posts, the search engine doesn't know what's supposed to be there and what isn't. That's not its job. The copyright holder needs to complain to the infringer. The infringer (or their ISP) takes the images down. And they're no longer accessible and will disappear out of the index the next time the search engine stops by for a check. And those who were rightly at fault will be in trouble but those who have nothing to do with it won't be bothered.

This is not Google's fault. I know it's "cool" to bash corporations on Slashdot, but it's not always the Big Megacorp's fault that bad things happen.

Re:I think Google were in the wrong with P10

[anthony_dipierro]

But, as I have said in other posts, the search engine doesn't know what's supposed to be there and what isn't. That's not its job.

But they were specifically informed of these images, and chose not to remove them anyway.

The copyright holder needs to complain to the infringer.

Why must there only be one infringer? If Person B copies something from Person A without permission, and then Person C copies it from Person B, there are two copyright infringers (barring a defense such as fair use), not one.

This is not Google's fault. I know it's "cool" to bash corporations on Slashdot, but it's not always the Big Megacorp's fault that bad things happen.

While I believe Google does have a possibly legitimate argument that their distribution was fair use, they don't have a legitimate argument that their distribution was accidental. They knew about the images, and they explicitly chose to take on this case (which is really not much more than a test case) rather than stop distributing the images.

Re:I think Google were in the wrong with P10

[Buran]

But Google, because the site hosting the images did not declare via robots.txt that it was forbidden to enter, DID have permission to index the site in its database. The owner of a given site has to be the one to ask Google not to index; I can't tell them not to index your site if I for some reason don't like what you've got on it. The most I can do is ask you to take it down, or if you don't and I have the legal right to stop you, ask your ISP to take it down.

Another analogy is that it'd be like prosecuting the innocent buyer of a stolen car who had no knowledge that the car was stolen. Car buyers don't have an obligation to check, nor do they have any kind of expectation that they are buying a stolen item. Prosecuting the buyer is just insane and makes you look like a jackass.

Re:I think Google were in the wrong with P10

[anthony_dipierro]

But Google, because the site hosting the images did not declare via robots.txt that it was forbidden to enter, DID have permission to index the site in its database.

They had permission from some random criminal, not from the copyright holder.

The owner of a given site has to be the one to ask Google not to index; I can't tell them not to index your site if I for some reason don't like what you've got on it.

You can tell them not to copy and distribute my site if you own the copyright on my site!

Another analogy is that it'd be like prosecuting the innocent buyer of a stolen car who had no knowledge that the car was stolen.

You keep missing the fact that Google DOES have knowledge that "the car was stolen".

Car buyers don't have an obligation to check, nor do they have any kind of expectation that they are buying a stolen item. Prosecuting the buyer is just insane and makes you look like a jackass.

If you tell the buyer that the car is yours and they refuse to give it back to you anyway, then then the buyer very well should be prosecuted.

Re:I think Google were in the wrong with P10

[Buran]

You can tell them not to copy and distribute my site if you own the copyright on my site!

No, I can tell your ISP to pull your site under the law. THAT is the remedy that has been specifically made available to you in cases like this. It's called the DMCA -- surely, you have heard of it?

And no, you can't order Google to remove someone else's site from the index. From their documentation:

Note: If you believe your request is urgent and cannot wait until the next time Google crawls your site, use our automatic URL removal system. In order for this automated process to work, the webmaster must first create and place a robots.txt file on the site in question.

Or are you proposing to hack someone else's server and install a robots.txt file? You'll find yourself facing hacking charges if you do such a thing. This requirement is designed to prevent fraudulent removal requests.

Google doesn't have to remove anything if it isn't asked to. The fact that Google is trying to build a comprehensive database to make its service as useful as possible means that it's opt-out, not opt-in. Yet Google knows that there will be times when something shouldn't be indexed. That's why there's TONS of information on their site describing exactly how to do it!

Re:I think Google were in the wrong with P10

[anthony_dipierro]

No, I can tell your ISP to pull your site under the law. THAT is the remedy that has been specifically made available to you in cases like this. It's called the DMCA -- surely, you have heard of it?

And surely you don't understand what it says. The DMCA provides protection from a copyright infringement lawsuit if your ISP takes down that site after receiving a takedown notice. It certainly doesn't provide protection from a copyright lawsuit for the person who intentionally violates copyright law in the first place.

And no, you can't order Google to remove someone else's site from the index.

Sure you can. And if that site is infringing on your copyright, Google is obligated by law to obey that order. What do you think it is that the Church of Scientology did?

Or are you proposing to hack someone else's server and install a robots.txt file?

No. I'm proposing you file a DMCA notice as outlined on http://www.google.com/dmca.html.

Google doesn't have to remove anything if it isn't asked to.

For the third time, it was asked to.

Re:I think Google were in the wrong with P10

[Buran]

And for the third time, I disagree with you because it was asked by the wrong people, who didn't go through the proper channels for taking offending material off the net. I think at this point we're going to have to agree to disagree, because I think you're wrong, you think I'm wrong, and neither of us shows any signs of budging.

Re:I think Google were in the wrong with P10

[anthony_dipierro]

I think at this point we're going to have to agree to disagree, because I think you're wrong, you think I'm wrong, and neither of us shows any signs of budging.

You could, of course, read the ruling. I'm sure the judge explained why you are wrong.

Or is the judge wrong too?

Re:I think Google were in the wrong with P10

[Buran]

Lovely. So you can't comprehend that someone might disagree with other people. Look, I don't give a damn who you or anyone else is. I don't agree with them! I don't like being bashed over the head with "Look, someone said something else, didn't you read it?!?" You can claim to be the king of England and point me to an opinion on it and I can still disagree if I want to.

I've been civil this whole time but if you can't respect that someone disagrees with you and you have to pull out the old, tired "Look, I'm not the only one who says what I think is the right answer!" card, I lose respect. I don't give a shit who you or anyone else is, I DO NOT AGREE and I don't have to. And not even "authority figures" are right all the time, so waving a title around means jack and shit. That's why we have appeals.

Give me a break.

I'm done. Find another thread and a better sucker who will actually bend over for you to pick on, because I'm not going to be back.

Re:I think Google were in the wrong with P10

[anthony_dipierro]

Lovely. So you can't comprehend that someone might disagree with other people.

Of course I can comprehend it. People make mistakes all the time.

I've been civil this whole time but if you can't respect that someone disagrees with you and you have to pull out the old, tired "Look, I'm not the only one who says what I think is the right answer!" card, I lose respect.

This isn't really an opinion. The statements your making have no basis whatsoever in law.

I'm done. Find another thread and a better sucker who will actually bend over for you to pick on, because I'm not going to be back.

Hey, I don't know why you bothered responding in the first place. You're wrong. Just face it and move on.

Re:I think Google were in the wrong with P10

[Anonymous Coward]

Hey, the fucktard can't comprehend that not everyone on slashdot is a lawyer!

Hey, the fucktard can't comprehend the fact that not everyone IS WRITING A GODAMN FUCKING LEGAL OPINION.

Hey, the fucktard can't comprehend that unilaterally claiming that someone else is wrong just proves the point that he can't respect someone else's opinions!

Hey, the fucktard is just that, a fucktard!

Re:I think Google were in the wrong with P10

[Buran]

Wow. You even pissed off an anonymous coward, who is probably anonymous to keep from getting abused. I give you points for that, but it's not enough to stay off my foe list.

I should have had you pegged as a fucking troll before, but now that I see that anyone who disagrees with you is "making a mistake", I've got you figured out.

Welcome to the bit bucket, (to borrow a word) fucktard.

Re:I think Google were in the wrong with P10

[anthony_dipierro]

I thought you weren't going to be back.

Re:not sure this makes a difference for book searc

[idesofmarch]

The whole reason Perfect10 brought the lawsuit is that its copyrighted photos were shown by other sites, which were indexed by Google. So, removing Perfect10 from the search would not cure the matter.

Re:not sure this makes a difference for book searc

[BeanThere]

I've dealt with and signed publishing contracts too and the contracts I've seen are incredibly one-sided towards the publisher, where publishers sign over not only rights to the work but to future related works too. Note that it was a very large publisher with a very strong brand and that hence carries a lot of sway. We had to specifically bargain to retain copyright.

Re:not sure this makes a difference for book searc

[Anonymous Coward]

yes I know copyright expires

Given the extensons to copyright terms that Disney buys to keep the Mouse locked up, that may not be before the Sun becomes a red giant...

Re:not sure this makes a difference for book searc

[BeanThere]

Here's more info on the problems with publishing contracts. Don't know if this is accurate but here's a statistic stating "99 percent of all the books ever printed are out-of-print".

Re:not sure this makes a difference for book searc

[Lehk228]

"99 percent of all the books ever printed are out-of-print".

that is an obvious statistic. it is impossible to keep pringing every, most , or even many of all books ever published. out of print doens't mean impossible to get it just means they aren't shipping it anymore. there are still loads floating around in used bookstores and new unsold stock that stores think they will be able to sell

The problem...

[Kaenneth]

Is that Google might just show the ends of books.

Imagine Googling "Star Wars" and the results are:

Leia is Lukes Sister

Darth Vader is Lukes Father

Lando turns them in

Mitochoridians cause the force

Snape kills Dumbledore

Re:The problem...

[Anonymous Coward]

D'oh!

Now you went and spoiled the movies for me; I was just about to get around to watching them tonight!

Or was it..

[Anonymous Coward]

"I think it takes the wind out of their sails"

I think it takes the wind our of their sales

Re:not sure this makes a difference for book searc

[anthony_dipierro]

I thought the crux of the Perfect 10 case was that it wasn't fair use because the entire work was reproduced (just smaller). I don't see how this can apply to Google Book Search unless they plan to reproduce each book in its entirety in the search results (which of course would be stupid and impractical).

Well, Google *is* copying entire books for its own internal purposes. The big difference (and it's a really big difference) is that they aren't distributing the entire books...at least not the whole thing to a single person...at least not intentionally.

That'd be...

[fyngyrz]

...gist

I think "jist" may be that stuff ZZ Top was singing about in "Pearl Necklace."

Re:That'd be...

[hvatum]

Thanks, you learn something new every day, especially at Slashdot. :)

Re:That'd be...

[fyngyrz]

[tips hat]

X-rated magazine and website?

[tarp]

Perfect 10 publishes nudes which could be considered artistic. As far as I've seen, no genitalia is even shown. It's purely topless modelling. How is this, in any way, shape, or form, "X-rated"?

Re:X-rated magazine and website?

[Anonymous Coward]

Sorry, aren't nipples considered as genitals? Or do I have my wires crossed? Probably.

Re:not sure this makes a difference for book searc

[Anonymous Coward]

Sounds like Perfect 10 was able to show economic harm (lost sales to cellphone users). I believe one of the criteria for fair use is that it doesn't cause economic harm.

Economic impact is a factor, but it is not, in and of itself, one that overrides all others. (Especially when you consider that some types of Fair Use arose out of conflicts between copyright law and the First Amendment.)

The Supreme Court made it clear in the Betamax case that when advances in technology make new and unanticipated uses possible, the law should NOT automatically be read in a liberal fashion that grants more power to copyright holders. The Court said if Congress had wanted to ban VCRs and timeshifting, that Congress could have passed a bill to that effect -- but that one could search in vain for any evidence that Congress had ever wanted to ban VCRs.

Google should be able to make much the same case with respect to the application of indexing the Web.

With respect to Perfect 10, IIRC, some people have said that the thumbnails are not coming from their site, but from reposts of images on other sites. Google's automated engine sees the reposted images on other sites, and indexes them because it has no way to know that they are infringing. If this is what is going on, one would think they'd thank Google for making it a bit easier for them to find those doing the infringing.

Letter From Perfect 10 To Google

[VeryHotTopic]

This is a link to the letter that Perfect 10 sent to Google regarding the copyright infringement. http://www.chillingeffects.org/notice.cgi?sID=898

Re:Letter From Perfect 10 To Google

[TekGoNos]

Hmm ... thanks for the info (seriously and inseriously) :

So from the letter, Perfect 10 basicly wants Google to enforce their copyright for them and block every page that has a disclaimer that they dont own the copyright on every image it contains ... which seems pretty excessiv to me.
First, most non-commercial pages on the web have such a disclaimer it.
Second, you need some text-understanding to know whether or not a page claims ownership over it's images.
Third, a lot of pages that have nothing to do with Perfect 10 fall under it.
Fourth, even pages that show images from Perfect 10 might have a right (either through licence or fair use) to do so.

What I find interesting is the proposition of a temporary access (account) to Perfect 10's content. Of course, going by hand through the - most likely - hundred of thousands of images Perfect 10 owns is stupid. They could have given Google a list of md5 sums though and told them to remove any image from their search that matches them ... and Google could have shown some good faith and asked for such a list themself.

Inseriously, the letter contains a rather extensive list of free porn sites containing rips of commercial sites ... ;)

No, the cat does not "got my tongue."

[Impy the Impiuos Imp]

said Google's use of thumbnail-sized reproductions in its image search program violated the copyright of Perfect 10, a publisher of X-rated magazines and Web sites, because it undermined that company's ability to license those images for sale to mobile phone users

Clearly the judge is confused as to what's going on. These images are already available for free, and free access, on the Internet -- or else Google wouldn't be able to index them!. Hence the ability to license these to mobile phone users is already undermined by those very same people seeking to sell it.

Re:not sure this makes a difference for book searc

[sepluv]

The reason is that big business fear the three `Great Evils' of fair use, the public domain and those authors who won't hand over their copyrights to the proper copyright hoarders/cartel for `protecting' (but instead do silly things like freely license their work).

As explained by Professor Lessig in his freely-licensed Free Culture, the copyright hoarders (i.e.: those force third parties to transfer their copyrights to them--usually as part of a protection racket) don't want there to be a public domain, fair use or a body of freely licensed expressive works out there; so they lobby to get the public domain and fair use removed, and try to buy up all the works out there (even those they have no interest in using).

As he explains there, the logic behind this is that public domain (or freely licensed) works many reduce their sales (probably not a significant factor), and, far more importantly, they will lose their control of the information channels (i.e.: these companies want to collude together to ensure that all expression/speech, at least in the US, is controlled by their cartel) which gives great control of the public (similar to slavery).

The first amendment and the limited times clause are in the Constitution because the founding fathers of the US (who I greatly admire, though I am not in the US) foresaw such a situation.