Appeals Court Overturns Perfect 10 Ruling, Says Google Showing Thumbnails Is Fair Use

from the nice-work dept

Last year, we were surprised when a court issued an injunction against Google in a lawsuit brought by adult entertainment magazine publisher "Perfect 10." Perfect 10 had a variety of complaints against Google, all relating to the fact that others (not Google) had taken Perfect 10 images and put them online. Google then indexed that content and showed thumbnails of the images in its image search results. Of course, Google had no way of knowing that the images were unauthorized copies -- and other courts had said that using thumbnails is fair use. In this case, Perfect 10 tried some unique reasoning, claiming that thumbnails shouldn't be fair use in this case because it also offered the pictures via a mobile service, and the thumbnails were effectively the same size as when seen on mobiles (i.e., claiming they're not really thumbnails). That seems like a stretch on the best of days, but especially since (again) Google had nothing to do with actually putting that content online. It was just indexing it. However, the court ruled that because some of the sites also included Google AdSense ads, Google was directly profiting. Of course, that seems like a totally different issue, so the entire decision was something of a mixed bag, at times saying that thumbnails by themselves aren't infringing, but there were cases where they were. The latest is that an Appeals Court has overturned the lower court ruling, saying (again) that thumbnails are fair use... but still opening up potential liability if Google could have done a better job to "prevent future damages." That seems to leave the whole thing wide open for the lower court (which the case is being sent back to) to screw up all over again. So, despite what the headlines might read, this case is far from over.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Woo! First!, May 16th, 2007 @ 6:03pm

    American Law makes me weep for the species sometimes.

     

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  •  
    identicon
    Anonymous Coward, May 16th, 2007 @ 6:16pm

    Redefine robots.txt

    Every site that wants to be indexed should be required to have a robots.txt file that grants the search engines certain permissions.

    If a site doesnt have robots.txt, then it wont be indexed. If a site gives google permission to index, then it can't sue google. If a webmaster is too stupid not to include a robots.txt file, then he is too stupid to get listed.

    This seems like a perfect solution to me.

     

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    •  
      identicon
      Charles Griswold, May 16th, 2007 @ 8:09pm

      Re: Redefine robots.txt

      Every site that wants to be indexed should be required to have a robots.txt file that grants the search engines certain permissions.
      Why? It seems to me that since the vast majority of websites want to be indexed (or at least aren't complaining), the system should be left as-is. The majority should not be punished for the stupidity of the minority.

      If a site doesnt have robots.txt, then it wont be indexed. If a site gives google permission to index, then it can't sue google. If a webmaster is too stupid not to include a robots.txt file, then he is too stupid to get listed.
      If a webmaster is too stupid to include a robots.txt file, then he shouldn't be a webmaster. Any webmaster worth his salt will know and use the tools at his disposal to do his job.

      This seems like a perfect solution to me.
      I'm sure it does. Fortunately, you seem to be a member of a small minority on that issue.

       

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    •  
      identicon
      Paul`, May 16th, 2007 @ 11:54pm

      Re: Redefine robots.txt

      or make it that if you dint have a robots.txt file then your site is fair game to be indexed, thumbnails and all.

       

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      •  
        identicon
        ?, May 17th, 2007 @ 12:33am

        Re: Re: Redefine robots.txt

        Why should anyone be granted permission to copy anything without permission first? Just because the majority of sites want to be indexed, does not mean all sites want to be indexed. The simple fact that there are lawsuits is PROOF.

        Nobody should be granted to copy anything without asking permission first. This is why robots.txt should be required if you want to be indexed.

        Because I didnt ask and you didnt say no, i assume you mean yes is backwards thinking.

        P.S. those sites have legal disclaimers stating that nobody may reproduce their images. Also, indexing thumbnails is not common among all search engines... It is common among a few search engines and most people dont even know that feature exists.

         

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          SailorRipley, May 17th, 2007 @ 12:47pm

          Re: Re: Re: Redefine robots.txt

          This sub-thread is just ridiculous...

          whether or not a robots.txt should be there by default, whether it means search engines are allowed or not to index the website, and even the part about by putting robots.txt the website agrees to be not suing google...

          that's not relevant at all, it wasn't the indexed site that sued google, so whatever system you're discussing there, it would not have made any difference, we'd be in the same situation...

           

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          identicon
          Charles Griswold, May 17th, 2007 @ 3:03pm

          Re: Re: Re: Redefine robots.txt

          Nobody should be granted to copy anything without asking permission first.
          Sure, OK.
          This is why robots.txt should be required if you want to be indexed.
          Wrong. Indexing is not copying. Copying is not indexing. One is covered by fair use, the other is not.
          Also, indexing thumbnails is not common among all search engines... It is common among a few search engines and most people dont even know that feature exists.
          No, it's not common to all search engines. It is, however, a feature of Google. Google is by far the dominant search engine. Anyone who doesn't know about Google should not be a webmaster. Yahoo, the second-place search engine, now features image searches.

          Saying that most people don't know about image searches because most search engines don't feature it is like saying that most people don't know about Internet Explorer because most operating systems don't include it. Most operating systems don't, but Microsoft Windows does.

           

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            Curtis (profile), Apr 5th, 2011 @ 6:07am

            Re: Re: Re: Re: Redefine robots.txt


            Indexing images using thumbnails IS COPYING!
            Yahoo is no longer the second place search engine because Microsoft Corporation or Bing does the Yahoo image search.

            Indexing of text has been excused as fair use when it is a summary of text with a link.

            Indexing of images was called fair use by United States Courts in a bare legal error by a horny judge that will soon be fixed in the following case.
            (5:09-cv-05151)


            http://www.Go-Oogle.net

             

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    •  
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      Trevlac, Feb 26th, 2008 @ 9:58am

      Re: Redefine robots.txt

      Being a website owner myself of a secretive page, I was rather surprised once when Google indexed my site. Nevertheless, I do not like this "opt-in" idea of including robots.txt but you may be on to something. I think that if someone wants to opt-out of being indexed or at least control what can be indexed they should write a robots.txt.

       

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      Curtis (profile), Apr 5th, 2011 @ 5:44am

      Re: Redefine robots.txt

      Google already used the robots.txt as implied permission to index if not supplied in Germany. The open Internet has violated the Communications Act of 1934 since first called the Internet.
      I have sued Google Inc and will not cease pursuing them till Google Inc exists no longer except as a word for searching the Internet.
      The statutory Damages for copyrite violations are already more than GOOG ever has made.
      Last three years of the Docket.
      (5:09-cv-05151)
      Search the Internet without seeing my nude and figurenude original art with a custom search interface.
      www.Go-Oogle.net

       

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  •  
    identicon
    Anonymous Coward, May 16th, 2007 @ 9:43pm

    Off topic - but it's beautiful how blog have given the art of insulting depth and breadth in modern society.
    Not that I'm complaining.

     

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  •  
    identicon
    MickaelMouse, May 17th, 2007 @ 4:51am

    Google are in the wrong here

    To understand why you have to understand the case.

    1. Perfect 10 had a website that blocked search engines.
    2. Someone took the images from Perfect10's site and created a fake site.
    3. Google indexed this fake site and all it's images, and cached thumbnails of them.
    4. Perfect 10 filed a DMCA take down notice against the fake site and got it removed.
    5. Perfect 10 asked Google to take down the cache.
    6. Google did not comply.
    7. Perfect 10 won an injunction preventing Google from showing the thumbnails.
    8. Google appealed.
    9. They've won the appeal.

    So Perfect 10 did everything right, they went after the infringer first, *asked* Google before seeking an injunction, and Google are wrong. They had stale data in their search engine they failed to purge. They won the right to have crappy stale data from a pirate site, and present bad data for a non existent site to a searcher.

    So their fair use claim is what? What use is bad search data from a search engine? There is no fair *use* here.

    You can argue that the thumbnails are small and hence fair use. That's fine for a few images, but there were lots and lots and lots!

    I'd view it differently if Google had a fair *USE* for that data, but the pirate site had gone and the search result stale.

    In arguing this, Google have opened the door to any number of stolen spam sites made from thumbnails of protected content. It makes their life easier, but it will totally f*** up a lot of websites.

     

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    chmike, May 17th, 2007 @ 5:26am

    Isn't google's publishing of "stolen" image assimilable to concealing ?

    PS: I'am french speaking, so the formulation might not be accurate. I ment "recel".

     

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    fuse5k, May 17th, 2007 @ 5:59am

    doesnt google have google cache to let people remove things from its cache?

     

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  •  
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    J, May 17th, 2007 @ 8:59am

    MickaelMouse is right

    MickaelMouse makes so much more sense than Mike Masnick.

     

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  •  
    identicon
    MickaelMouse, May 17th, 2007 @ 11:52am

    Why should anyone be granted permission to copy an

    "Why should anyone be granted permission to copy anything without permission first? Just because the majority of sites want to be indexed, does not mean all sites want to be indexed. The simple fact that there are lawsuits is PROOF."

    For the same reason I just copied your post. Fair use. Without fair use, we'd grind to a complete halt in mindless lawsuits and ludicrous licensing. How could we even discuss the details of the copyright license, if we couldn't quote the text of the license to discuss it, without a license?!

    It's perfectly reasonable for Google to cache small thumbnails of images on a site for the purposes of search. That's how users can see the images and click on them to visit the site.

    It's not fair use for Google to cache images for a site that's gone. There's no purpose in showing images for the removed site, the purpose (the *usefulness*) has gone so it's no longer fair use, it's just infringement.

    Google are wrong here. Flat wrong, the correct response was to check the details of Perfect 10's claim then flush the cache as stale. Perfect 10 did not want their images cached, those images were stored behind a login wall. Their claim is reasonable.

    The courts are thrashing around trying to find a solution in the present wording of the law that defines Google wrong in this case, without removing their right to index images for the useful purposes of search for other sites. Hence the disagreement between the court opinions.

    My view is they should say it's not fair use because the use fullness has gone when the site was removed. Perfect 10 should win on that basis.

    IMHO

     

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    •  
      identicon
      SailorRipley, May 17th, 2007 @ 1:09pm

      Re: Why should anyone be granted permission to cop

      I don't agree entirely:

      if thumbnails are considered fair use (which is the working theory) and by themselves aren't infringing, it doesn't matter where Google "found" them: whether they were from the Perfect 10 website, or from a site illegally displaying them, as established, having and displaying thumbnails is fair use, so Perfect 10 or anybody can waive with the DMCA as much as they want, it won't change a thing, since it will fall under fair use...

      Could/would it have been nice/polite of Google to remove the (as somebody dubs it) stale cache of, what is agreeable an illegal site, or a site illegally showing certain content? Sure, of course it would have been nice.

      I don't know Google's motives of course, but I can understand Google being rigid and only wanting to comply when they (legally) have to...

      One reason could be: if they did it in this case (even though they legally didn't have to), that would open the door to a gazillion similar take down requests without a real legal foundation (the reasoning would be: hey, we can always try, it wouldn't be the first time Google complies even though they don't have to). Or just on the (economical) principle: they already get tons of requests, so taking action when the take down requests are actually justified is costing Google already enough time, money and resources, without them feeling the need to additionally start doing it when they're not obligated.

      Regardless of what their motivation is, if Google isn't legally required to do it, nobody can blame or put them down for not doing it

       

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  •  
    identicon
    j, May 17th, 2007 @ 2:01pm

    Google knew what they were getting into

    Google was totally aware that it could be breaking many copyright laws when they decided to index thumbnails. I assume that Mike is a Google shareholder as Google is one of the few large corporations that he fully supports.

    As a designer, I don't want google indexing graphics that I created. The only people who should be displaying my graphics are people who paid for them. Why don't I want Google indexing them? Because the graphics themselves become part of a global downloadable library that anyone can easily steal without ever looking at the terms and conditions on my websites. Graphics are a result of my hard work as any tangible item that you could create is your hard work.

    For some reason, many of the techdirt communists think that anything that isn't tangible should be free. Music, movies, photos... Someone has to work hard to make and produce them.

     

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      Mike (profile), May 17th, 2007 @ 2:08pm

      Re: Google knew what they were getting into

      Google was totally aware that it could be breaking many copyright laws when they decided to index thumbnails. I assume that Mike is a Google shareholder as Google is one of the few large corporations that he fully supports.

      I'll just state for the record that I am not, nor ever have been, a Google shareholder, and I am just as critical of Google when they do something wrong as I am of other companies.

       

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