Google Wins Nude Thumbnail Legal Battle

eldavojohn writes "Google is currently fighting many fronts in its ability to show small images returned in a search from websites. Most recently, Google won the case against them in which they were displaying nude thumbnails of a photographer's work from his site. Prior to this, Google was barred from displaying copyrighted content, even when linking it to the site (owner) from its search results. The verdict: "Saying the District Court erred, the San Francisco-based appeals court ruled that Google could legally display those images under the fair use doctrine of copyright law." This sets a rather hefty precedence in a search engine's ability to blindly serve content safely under fair use."

Comments

RTFA

[dubonbacon]

The U.S. 9th Circuit Court of Appeals undid a preliminary injunction, issued last year by a Los Angeles District Court, that had kept the Web search giant from displaying thumbnail-size photographs of images owned by Perfect 10 Inc. that other sites had improperly posted.

Precedent. With a T.

[koreth]

Operator precedence. Legal precedent.

English: learn it and love it!

Re:Missing something...

[adminstring]

The photographer's complaint was not with Google indexing and showing thumbnails from HIS website, but rather with Google indexing and showing thumbnails from OTHER sites which had illegal copies of his photographs. The photographer has no control over the robot.txt file of the other sites, and his complaint is that "...Google substantially assists websites to distribute their infringing copies to a worldwide market and assists a worldwide audience of users to access infringing materials."

The real issue here is whether Google deserves a kind of common-carrier status, whereby they are not responsible for the content they index and return as a search result, or not. For example, the telephone company can't be sued if someone uses a telephone to plot a robbery because they are a "common carrier" and are not expected to know or censor the content that is shared over their network.

My own personal opinion is that the nature of Google's business resembles a telephone company more than anything else - when their crawlers come across an image, Google has no idea if the image is hosted legally or not, and it places an undue burden on Google to expect them to figure out the legal status of each image they index and thumbnail.

Link to the actual ruling

[seaturnip]

Here. 50 pages but a good read at least for me.

Note that slashdotters are always complaining about judges not knowing anything about computers, but this court has a very good understanding of the relevant technical issues. They are fully aware of which servers are transmitting what data even when this is not immediately apparent to amateur users, and base part of their judgement on that basis.

Re:yes

[Anonymous Coward]

Actually, it is different from a legal standpoint. There are a few reasons one could point to, but I think the main one is that a snippet of text is just that - a piece of a larger work. In the case of thumbnails, you get the whole image, even though it's shrunken down. But it's still the whole thing. So the question is: does that make a difference under the law? And the answer we got yesterday is, at least in the territory governed by the 9th Circuit, "probably not much of a difference."

But I have to caution everyone against a few things: first, you should refrain from describing the case before reading it: the court didn't say Google's practices were exactly "legal." They did give a strong fair use argument related to the use of thumbnails in image searching, but they didn't say that everything Google did was kosher - they laid out a rule and told the lower court to look into the facts and apply their new ruling to see if Google did everything properly. So, while it was a positive ruling, Google didn't quite "win."

Second, I don't know what the poster above is talking about when he mentions "the DMCA" and "uneducated court rulings." The only thing the DMCA has to do with this case is that it might help Google avoid liability because of the so-called safe harbors for internet services. The "bad" part of copyright law that Google was sued under is just the plain-old copyright statute that has - more or less - been in effect for the past 100 years. Also, there aren't any "uneducated court rulings" in regard to this case - the trial court decided mostly in favor of Google and against it only on a pretty narrow set of issues. It was a thoughtful decision and, again, I'd recommend it to anyone who's interested in these issues.

Re:Sorry, no way.

[Baricom]

I thought fair use was for allowing derivative work.

Not quite. Copyright law specifically reserves the right to prepare derivative works (17 U.S.C. 106(2)).

You're basically stating that if I were to use a small fraction of a media format, it's not under fair use - when it clearly is.

Not necessarily. Fair use has four tests defined by 17 U.S.C 107(1-4):

• The purpose and character of the use;
• The nature of the copyrighted work;
• The amount of the work used in relation to a whole;
• The effect on the market.

Just because only a portion of the image is used (a fact I will dispute shortly) doesn't mean that you're off the hook, because you must consider the other three tests.

A thumbnail is *not* the whole image.

Your argument below this - that it's not the same image but merely a grid averaging the pixels of the original image - is somewhat compelling, but ultimately I would disagree with you here. If you stand by your argument, then surely it should also be legal to publish full-length MP3s of every song sold by the U.S. recording industry, as long as they're downsampled to 32 kbps?

Of course, these are all images that are publicly displayed - and as such, fall smack into the fair use category.

Just because something is publically displayed doesn't make it "fall smack into the fair use category." If it did, then I'd be able to hand out CDs on street corners, provided I recorded the music from the radio.

By the by: if you have an artist paint in the missing detail in a clean-room setting (ie: the artist has never seen the orignial), the new work belongs to the artist.

True, but that doesn't apply here. The painter is Google, and it has seen the original.