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

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.

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: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