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A stronger fair use doctrine?

When the Copyright Act of 1976 was enacted, it was supposed to be technology-neutral, covering all forms of technology. All forms of original works--print, audio/ video, microfiche, and even electronic--were included. It also wasn't supposed to matter what technology was being used to copy the original--photocopier, tape recorder, printing press, Mimeo, or even computer. By using broad, nonspecific language that focused on copyright substance rather than copyright form, the law was designed to be applied in the same way regardless of the technology involved.

But the Internet and digital technology have pushed this neutrality. With a photocopier or tape recorder, you know what a copy is. With the Internet, it becomes less certain. Do you make a copy by calling up a Web site or when your computer automatically caches a Web page? Are you infringing by linking to a remote Web site or by deep linking to or framing the remote site? Is it fair use to make a digital copy for personal use, to post on a classroom Web page, or to create a historical archive?

Google and Copyright

Usually the courts attempt to resolve these types of questions. Major online information companies such as Napster and Google have been at the center of this court action. In particular, Google is party to a number of copyright lawsuits. This is in part because the nature of Google's business involves content access and duplication in many of these uncertain areas. However, Google has also been fairly assertive in its copyright stance and has the resources to pursue its position. For good or for ill, Google is emerging as a major force in resolving some copyright questions.

Recently, a federal appellate court handed Google a solid copyright victory in a case involving its use of full-size and thumbnail images. The court's opinion also provided some much-needed clarity in the world of digital copyright law.

Google was sued by Perfect 10, publisher of an adult magazine and Web site, for providing thumbnail images and framed links to full-size images of Perfect 10 content in response to search queries. Its complaint was that Google was directly infringing on Perfect 10's copyrights by providing the image, and it was also indirectly infringing by providing access to other Web sites that were promoting unlicensed copies of Perfect 10 images. While a lower court had held that linking to full-size images was a fair use, the court found that the thumbnail images interfered with Perfect 10's market for low-resolution images (for cell phones) and was not fair.

Linking Is Not Copying

The appellate court clearly recognized that linking to an image was not the same as copying or distributing an image. The only thing being communicated by Google is the HTML instructions to the image's URL and not the image itself. While framing the link may have the potential for confusing a user into thinking that Google copied the image, the court ruled that this did not violate Perfect 10's copyright. The court also held that caching captured the HTML instructions but not the image, so no copying or distribution was actually taking place.

The court also affirmed Google's fair use defense of its linking to full-size images as well as thumbnail images. The court focused on three particular points in supporting Google's position. First, the court required Perfect 10 to bear the burden of proving that it could defeat Google's fair use defense. This strengthens fair use by forcing the copyright owner to affirmatively establish that fair use should not apply rather than forcing the user to establish that it does.

Electronic Reference Tool

Second, the court confirmed that the use of the image in a search engine was different (or "transformative" in the language of the fair use doctrine) from its original use. The court found that as an electronic reference tool, the thumbnail image was an entirely new use of the original work. These new uses, as opposed to copying for mere duplication, are central to the fair use doctrine.

Finally, the court recognized the importance of the public benefit that the search engine provides and that this public benefit is a critical component of the fair use doctrine. The court relied on the Constitution's statement of the purpose of copyright law to "promote the Progress of Science and useful Arts" and the Supreme Court's holding that copyright was to serve the "welfare of the public." Even though Google earns an income from advertising associated with search engines and Perfect 10 has a market for cell phone images, the public benefit outweighed those commercial interests.

Although this was a solid victory for Google and fair use, not all of copyright's legal questions were answered. The court said that Google might still be liable for contributing to infringement of Perfect 10 images by third parties. Perfect 10 would need to show that Google knew that third parties were infringing Perfect 10 images and that Google could take "simple measures" to prevent infringement and failed to do so. One commentator asked whether "simple measures" meant "easy for Google" (such as a search filter) or whether the measures must take into account the public benefit or detriment (such as limited search results due to overfiltering).

Commercial Interest Versus Public Benefit

The court found that fair use includes consideration of the public's benefit and that in this instance, the benefit of the search engine outweighed both Google and Perfect 10's commercial interests. However, a stronger commercial interest might outweigh the public benefit in another context. Another commentator noted that incidental access to some sites containing infringing material is different from the wholesale copying that Google Book Search proposes. The court handling the Book Search lawsuits will be looking very carefully at that aspect of the decision.

Nonetheless, the fair use doctrine emerged in better shape from this court decision than other recent actions. Perhaps the courts are getting a handle on technology and the law. At least a couple of the questions now seem to have better answers.

George H. Pike is director of the Barco Law Library and assistant professor of law at the University of Pittsburgh School of Law. His email address is Send your comments about this column to
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Title Annotation:Legal Issues
Author:Pike, George H.
Publication:Information Today
Geographic Code:1USA
Date:Jul 1, 2007
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