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

How is this different from text?

[Anarchysoft]

For many years, Google has shown snippets of a website's likely copyrighted text. Is this really any different from a legal standpoint?

Re:How is this different from text?

[WoLpH]

And Google has been sued (atleast in Belgium) for just that, some newspapers didn't want Google to show the text on there site, so they sued and won. In exchange Google removed those websites _entirely_ from there search results, I'm just wondering what they would have liked better ;)

What happened to robots.txt?

[Opportunist]

If you don't want your page to show up in google, send the robot home. They actually honor that, ya know.

If you don't know how to use it, well, then maybe you should not display your content on the internet. It will survive without.

Re:What happened to robots.txt?

[Anonymous Coward]

I'd Google it, but I might end up with all these pornographic pictures... :^) Isn't that the point of a search engine?

Re:What happened to robots.txt?

[houghi]

Yeah, I say that opt-out is the way to go. (NOT)

Why not have a robots.txt to opt-in?

yes

[Anonymous Coward]

Is this really any different from a legal standpoint?

Yes, because now a court has ruled that it is legal.

If Google gets fair use, others will too. This helps to chip away at the damage the DMCA (and a few very uneducated court rulings) has done.

Re:yes

[flyingsquid]

Personally, I don't really see what the fuss is all about. I go around with my thumbnails uncovered all of the time (even though they are a bit chewed-up) and I don't care if people can see my nude thumbnails on Google or not.

Re:yes

[gfxguy]

How does this chip away at the DMCA? What part of the DMCA was violated? Just because it's digital content?

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:yes

[Anonymous Coward]

This thread is useless without pics.

Re:yes

[BakaHoushi]

I think you point out the rather humorous point of people making assumptions when many meanings are possible. I'm reminded of a scene fro Family Guy at a meeting for the construction of the Constitution.

Jefferson: "So, do you think we should go into more detail about the 2nd ammendment? You know, to clarify it?"
Washington: "No, I think it's clear enough the way it is. Everyone has the right to keep bear arms over their door. Simple, isn't it?"

On the other hand, your joke has inspired me to consider the possibility of fingernail pornography. It must be out there somewhere. This is the Internet. Every part of the body has a fetishist. I'm very frightened, but I know it's out there.

And to be more on topic, good for Google. Honestly, it's not like Google ever claims ownership of these images. It just provides an incredibly small preview of an image you can find on another site that it links to. I don't get it. Where can anyone see any harm in that? Did somebody make a patent for the idea of a "preview?"

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.

Re:RTFA

[Volante3192]

np, Perfect 10 just has to send DMCA removal requests to the original sites...which they can easily find with Google image search.

What I'm wondering is why go after the intermediate? Google's providing them a wealth of information on infringers. Shut down the middleman you lose your path to the top. (bottom?) Seems to me Perfect 10's just (a) lazy and (b) looking for a quick buck. Go after the REAL infringers already.

Re:RTFA

[Scrameustache]

np, Perfect 10 just has to send DMCA removal requests to the original sites...which they can easily find with Google image search.

What I'm wondering is why go after the intermediate? That's the BILLION DOLLAR question.

And that sound...

[adona1]

is millions of 13 year olds cheering, as their first taste of pr0n surfing remains within their grasp.

Re:And that sound...

[Anonymous Coward]

Actually, that sound is what millions of 13-year-olds are doing after hearing of this news...

(...eewwwww...)

Re:errr....

[Pharmboy]

You just don't get it. Google isn't pretending to be YOUR site by showing thumbnails. It is providing a service, one you can opt out of using a single line in /robots.txt. The service benefits both parties.

You CAN use a thumbnail of Google's logo to represent a link to them, that would be fair use, which is EXACTLY what this is about. Other use is obviously copyright infringement.

Try reading US Title 17 Section 106A and comprehending it. It isn't that hard.

Re:Idiots like that photographer should be banned

[Anarchysoft]

Idiots like that photographer should be banned I'm glad people can't be banned from the net. The internet should be considered in the commons, like the air waves supposedly are. ;)

So this case has nothing to do with nudity?

[joeflies]

this appears to be a case of fair use over copyrighted work. So why's the nudity a part of the article headline?

Re:So this case has nothing to do with nudity?

[The Real Toad King]

It's a strategy the /. editors are using trying to get more people to RTFA.

I'm not falling for it though.

Re:So this case has nothing to do with nudity?

[thegrassyknowl]

Because nudity draws the attention of everyone. It's about choosing words that attract the attention of people while they're skimming the article headlines. You need to draw them to your spamvertising site to get revenue. Nudity does that, as does the terrorist threat, and a few other select social buzzwords.

But, I am glad to see that common sense is prevailing here. Score one for fair use. Maybe the world is changing as the courts start realising that copyright is not about making as much money as possible, but about encouraging the creation of new and interesting material for the benefit of society as a whole.

Victory!

[yotto]

This is more than a victory for Google. It's even more than a victory free speech. It's a victory for copyright law reform and a victory for anybody fighting a battle for free distribution of content over the internet.

And it's of course a victory for all of us who like teh boobays.

Re:Victory!

[GigsVT]

No.

Just because one part of a law is good, doesn't mean the entire thing is good. Especially with the federal government and their tendency to cram 100 unrelated issues into one act.

Why must they mention porn?

[AaxelB]

This is a really good thing, it sets a good precedent and so on and so forth, and is probably news worth posting on its own merit. Why must we promote it with "nude thumbnails" in the title? I mean, you should only add an empty promise of porn if the story can't stand on its own. With an interesting story, it's just distracting.

Text is a part; a thumbnail is a whole

[searchr]

Main difference is the protection for text and video is the ability to fairly take a portion of the entire copyrighted piece. With a still photo, even though it's a smaller version, it's still the ENTIRE image, which on the surface seems to go against the definition of "All Rights Reserved". The question a court has to consider, is if that thumbnail, that smaller version, in any way detracts or takes away anything from the original (and not just commercial, there's an artistic value to it as well.) For this case, I think specifically as a search engine function, the court says meh, you're fine.

In fact, as a test of Fair Use, it isn't clear if the wholesale simple shrinking of an image to smaller size is in itself fair game, or if it is just within the specific context of a search engine.

Makes me wonder what this means for the Google Books thingamajig.

Re:Text is a part; a thumbnail is a whole

[Fordiman]

It's not the entire image. Technically, it's a grid of small parts of the image, averaged together. You lose a LOT of the original image that way.

Put it this way: Say the original image is 1024x768 in size, and the thumbnail is 160x120. That's 786,432 pixels of image versus 19,200 pixels, or 1/40th of the image.

I think 1/40th falls well under fair use, don't you?

Hey, where are the links?

[Tatisimo]

In a past story, we got links to all kinds of piracy websites, but this time we get no links to pr0n... Am I missing something? Since when is linking to pr0n any more taboo than linking to piracy?

I don't understand what the big deal is

[MutantHamster]

I mean, I don't know about you, but my thumbnails are always nude? Since when is this an issue?

Re:I don't understand what the big deal is

[treeves]

Same here. I've never used fingernail polish either.

Sorry, no way.

[Uniquitous]

A thumbnail doesn't give you the full detail of a full-sized image. Try to scale it up and you get pixellated garbage.

Re:Sorry, no way.

[snarlydwarf]

You, sir, seem to have never watched CSI: modern computers (at least on TV) have infinite resolution.

Re:Sorry, no way.

[ignavus]

A thumbnail doesn't give you the full detail of a full-sized image. Try to scale it up and you get pixellated garbage.

Been trying that with nude thumbnails, have you?

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.

Missing something...

[__aaclcg7560]

Couldn't the photographer have a robot.txt file in the website root directory to tell the robots to leave the image directory alone? That's what I do for my website to keep my pictures off the image search.

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.

Re:Missing something...

[Antique Geekmeister]

I'm afraid that Google doesn't deserve common carrier status: they haven't earned it, due to their willingness to censor content with unfounded copyright claims, and to censor references to dissident content, etc. It's not that Google is bad, or historically outrageous about this, but engaging in that kind of censorship as a matter of policy can ruin your status as a common carrier.

Defeat!

[Harmonious Botch]

But when you try to upgrade they take half of everthing you own.

Not the same thing.

[raehl]

Google puts links to your site on THEIR website.

Spammers put emails in YOUR email box.

Further, when you publish something on the web, it is public by default.

Don't apologize. Yes way.

[searchr]

It's not the detail that matters, it's the entire image that's is in view, not a corner or portion. The court didn't define "thumbnail", either. So thumbnail to one person is small viable image to another. If the original is 3000 pixels wide, is a 400 pixels enough of a reduction to be considered "thumbnail"?

For certain uses, having full resolution doesn't matter. A small version of a porn image, meant only for online viewing to begin with, may be enough to, um, function, for the viewer, degrading the value of the original. I'm not saying I agree with this, I'm just saying there's a difference between taking a paragraph from an entire novel, or a single frame from an episode of The Daily Show, and showing an image in its entirety, except smaller.

Example would be, say, the first exclusive pics of Angelina Jolie's baby. Million dollar shots. Or the first image ever of the iPhone. Priceless. But posting a tiny version online, it would still "reveal" everything that the larger version would, taking that right of publishing/profit/secrecy away from the owner. On a cellphone, a way that many many millions of people are viewing images now, a "thumbnail" is plenty big enough to see all they need to see.

I don't need to print a six foot framed print to hang over my couch. I just want to see Britney nekkid. So there's a difference.

Re:Don't apologize. Yes way.

[aldo.gs]

I agree that there is a difference between taking a paragraph from a novel and a reduced-size "complete" image. That's the point of thumbnails: to show the "complete" picture, I think.

But it is not the entire image that's in view. Not by a long shot, in most cases. Sure, you can see naked some girl with your face nearly touching your monitor and be done with it; but it is still just a sample of what you are looking for. A sample in the sense that most details are gone. Perhaps not as much as the original author would like, but they are gone anyway.

Also, let's look at the text thing: If you have a short (very short) story of about two paragraphs and you show only one of them, what would happen? If you have a full body pic of a girl and they show you the upper half, what would happen?

Of course this all fails if by thumbnail we understand an image of 1200 pixels wide, but I think it is important to point out that even when they show you the "complete" picture, they just don't show you the complete picture. At least not in the thumbnails I have seen so far in Google.

Re:Don't apologize. Yes way.

[Fordiman]

You're missing the point, man. If you were to compare this to a novel, it'd be like taking the sentence from each page and making a page of that.

Or, more cognitively, the cliff's notes of a book: you get the whole story, but not the interesting (or not - there's a reason cliff's notes exist) details.

Re:Don't apologize. Yes way.

[The One and Only]

Example would be, say, the first exclusive pics of Angelina Jolie's baby. Million dollar shots. Or the first image ever of the iPhone. Priceless. But posting a tiny version online, it would still "reveal" everything that the larger version would, taking that right of publishing/profit/secrecy away from the owner.

Of course, by the very nature of Google Image Search, that wouldn't be a problem for Google so much as whatever page it indexed.

Precedent. With a T.

[koreth]

Operator precedence. Legal precedent.

English: learn it and love it!

Re:Precedent. With a T.

[codeButcher]

You forgot the Moronic President from your list. Not that any one country has a monopoly on that, so I didn't bother to provide a link....

Subscription required? Here's a free site.

[whoever57]

Even if it is a free registration, this has been reported in many places, it's not hard to find a subscripton-free report, for example: here

Would this still be forbidden for icons/smileys?

[Anonymous Coward]

IANAL, but from what I have gathered about fair use a sign of it being exceeded is if the third-party provides sufficient material that the likely user would not need to seek out the original source. Hence small thumbnails of professional photographs are not infringing.

However - what if the image itself was the size of a smiley? What if Google Image Searching for 'afro smiley' displays an identical copy of the one you would find on a copyrighted, smiley-designing, ad-supported website? In this case the original source _would_ be completely replaced by Google. If a case like that ever comes up the result would be very interesting - either 1. allowing full display of any picture smaller than your average thumbnail, 2. giving carte blanche for copying in the absence of a robots.txt (i.e. you need to take active action to make infringement of your works illegal), or 3. mandating that the thumbnail be either microscopically small or obscured in some way. All of which would be interesting and slashdotworthy news.

Re:errr....

[Macadamizer]

So in theory I could display google's logo in a prominent place on my webpage and use it as a logo, as long as it links back to their page..

If they complain, its just a thumbnail.. cool.

Don't confuse copyright and trademark law. Google's logo is more than a thumbnail -- it's a trademarked logo. Your use might be a "fair use" under copyright law, but would likely be infringing under trademark law.

Simple answer.

[Kadin2048]

What I'm wondering is why go after the intermediate?

Deep pockets.

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.

Is this really surprising?

[katterjohn]

Judges prefer using Google to get porn too!