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Perfect 10 versus Google: thumbnails and cell phones.

Since the information industry has focused on copyright issues associated with Google's Book Search program, several lawsuits against Google filed by publishers and authors are still pending. These lawsuits allege that Google Book Search infringes on their copyrights and is not fair use, as Google claims.

Google, however, remains undeterred. Just recently, the University of California system signed up with Google to have its holdings included in Book Search.

Hidden somewhat by the Book Search program and lawsuits is another copyright infringement suit involving Google that could have enormous implications on Google Book Search and even broader search-engine functionality. A federal appeals court will soon consider a copyright infringement lawsuit filed by Perfect 10, a publisher of adult-content magazines and Web sites, against Google. The suit claims that Google's use of thumbnail versions of Perfect 10's images infringes on their copyrights.

Many observers thought this issue had been resolved. In 2003, a federal court held that a search engine's use of thumbnail images was fair use. In a case involving images that an artist had posted on his Web site, the court ruled that thumbnail images were for a different purpose and character and that they did not impact on the market for the artist's work.

Google Book Search

The thumbnail holding is important to Google's argument that the Book Search is also fair. By publishing only snippets, or short pieces of information from copyrighted works (such as with thumbnails), Google is using the work for a different purpose that will not impact on the market for the original. (Google even provides links to booksellers who can sell the work.)

In the current lawsuit, Perfect 10 raises several challenges that were not fully explored in the earlier case. Two of these, which were accepted by the lower court, are particularly important to the information industry.

The first challenge focused on Google's collection of thumbnail images and their purpose. Thumbnail images are copied by Google and cached on Google servers to provide a convenient, quick review of the underlying image. This type of copying was found to be a fair use in the 2003 lawsuit. Since then, however, the commercial market for these images as wallpaper for cell phones has grown. Perfect 10 successfully argued that Google's thumbnails are usable as wallpaper, which impacted the market that Perfect 10 was exploiting. Because of this, the trial court found that thumbnails were not a fair use.

Advertising Revenue

Perfect 10 then pointed out that, unlike the search engine in the 2003 case, Google generates revenue through search-engine-placed advertising, making it much more of a commercial enterprise. Google acknowledges that it makes a significant amount of revenue from advertising placed on its own Web site and served to other Web sites, including sites that provide thumbnail images. The trial court found that the thumbnail images in particular "lead users to sites that directly benefit Google's bottom line." This commercial use, more so than in the earlier case, also supported the finding that thumbnails were not a fair use.

This case raises serious questions for image searching and Google's Book Search. If the decision stands, commercial search engines may not be able to provide image-searching capability. Google may claim that the cell phone market only impacts certain images, such as the adult pictures that Perfect 10 offers. If so, a blanket restriction is not appropriate.

What Is and Is Not a Market?

But courts have been reluctant to decide what is and is not marketable. Millions of images exist on Web sites indexed by Google, and millions of reasons exist why someone may want those images on a cell phone or for another purpose. The ubiquitous use of cell phones has created a small but growing market for cell phone content of all kinds. Napster's peer-to-peer file sharing was shut down in the face of a market that was similarly small but has grown dramatically.

Google's Book Search provides only snippets of copyrighted book text in response to a search, so it claims that to be a fair use. A weakening of the fair use of thumbnails could also weaken Google's fair use argument for Book Search. Google may respond that a snippet is different than a thumbnail and that no other market exists for the snippet. Even if users get the information they need from the snippet and do not then purchase the book, Google could assert that users likely would not have purchased the book anyway if they could obtain the information from a library or other source.

But again, it is difficult to say that a market could not exist for snippets. The e-book market has been slow to build, but it is there. Other markets exist for payment of royalties for online news and research articles. Who is to say that publishers could not tap into these similar markets by making snippet or other partial content available for purchase? The potential for a commercial market can shoot down fair use as much as an existing market.

Choosing Sides

The Perfect 10 case is on appeal. A number of parties are lining up on both sides of the issue. ALA and other library groups, along with Internet and technology groups, are supporting Google's position to preserve thumbnail images for research purposes. Content providers, including the recording and motion picture industries and photographers' groups, are supporting Perfect 10's position to protect their copyrights.

As this case goes to the appeals court, some interesting language from the trial court may prove to be important. The trial court found merit in Google's argument that public interest value exists in "improving access to information on the Internet." The trial court also said that in determining fair use, the court can consider the public's benefit from a particular use.

Copyright has always been about balancing the encouragement of creativity by providing copyright law's exclusive rights, with the public's interest in "promoting the progress of science and useful arts." That balancing has sometimes been forgotten in the Digital Age. Perhaps the courts will keep that in mind as they consider these issues.

George H. Pike is director of the Barco Law Library and assistant professor of law at the University of Pittsburgh School of Law. His e-mail address is pike@law.pitt.edu. Send your comments about this column to itletters@infotoday.com.
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Title Annotation:Legal Issues
Author:Pike, George H.
Publication:Information Today
Date:Oct 1, 2006
Words:1056
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