Germany Finds Google Images A Violation Of Copyright Law

from the needing-safe-harbors dept

US courts have recognized, reasonably, that an image search engine like Google's is not infringing on copyrights when it displays thumbnail images as a result of a search. However, it appears that German courts are not quite so understanding. Two new rulings in Germany say that thumbnail images are, in fact, copyright infringement. The German court's reasoning was: "It doesn't matter that thumbnails are much smaller than original pictures and are displayed in a lower resolution. By using photos in thumbnails, no new work is created." While I'm certainly not as familiar with German copyright law as I am with American copyright law, this statement still doesn't make that much sense.

The purpose of copyright law shouldn't just be concerned with whether or not a new work is created, but the purpose of what's being done. So it's difficult to see, for example, how a thumbnail that links to the original can possibly do any harm. If the "artist" behind an image doesn't want it found in Google, don't put it online. If the complaint is that someone else put the image on Google allowing it to be indexed, that's not Google's fault, but whoever put it online. Suing Google makes little sense -- and a judge finding against Google makes even less sense. Google has made it clear it intends to appeal, but it's troubling that a court would rule this way in the first place. It suggests, at the very least, a less than complete understanding of how an image search engine works. It also should raise questions about whether or not this ruling effectively makes any sort of inline hotlinking of images copyright violations as well.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Bill M, Oct 14th, 2008 @ 10:59am

    I don't like the ruling either but it's not as though the court's logic is that flawed. "Fair Use" is about incorporating small portions of copyrighted work in a new work for the purpose of commentary, etc. Google's image search is just a collection of pics from other people.

    The argument that really gave me a guffaw was, "If the "artist" behind an image doesn't want it found in Google, don't put it online."

    It is like saying, if you don't want your car stolen, don't park it outside? I mean sure, that's an effective way to prevent most theft, but destroys the utility of a car if you can't park at the mall or a restaurant, etc. Stealing is illegal, and I should be confident that if someone does steal my car, they will be punished once they're caught and convicted.

    As for unapproved inline hotlinking, a lot of people think it SHOULD be criminal, as it steals not only the creative work, but also the bandwidth of the original webserver.

    The only valid argument here is that the benefit/utility of Google images (and perhaps also hotlinking) outweighs the drawbacks.

     

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  2.  
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    Anonymous Coward, Oct 14th, 2008 @ 11:08am

    Re:

    While I agree that "don't put it online" is a ridiculous idea, it's not quite as ridiculous as continually conflating infringement with theft. So, won't you please explain how linking is equivalent to stealing? If I post a notice that says your car is parked in Lot A at the mall, is that the same as stealing your car? If not, then how is posting a notice that some artwork is located in a particular place the same as stealing the artwork? If it is the same as stealing your car, why can't the police arrest me for it? If you can't understand the difference between infringement and theft, or explain how they're the same thing, then you shouldn't be posting your comments.

     

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  3.  
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    Some other guy, Oct 14th, 2008 @ 11:08am

    Re:

    If you don't want your car stolen, do not leave it outside, with the doors unlocked and the engine running.

    -- there, fixed it for you.

     

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  4.  
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    Anonymous Coward, Oct 14th, 2008 @ 11:10am

    Re:

    was about to comment about: ""If the "artist" behind an image doesn't want it found in Google, don't put it online."

    but Bill M has that covered.

    i would suggest if you don't want google to index your site (or a section of your site) add a robot.txt to stop google bots from indexing them

     

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  5.  
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    Anonymous Coward, Oct 14th, 2008 @ 11:15am

    Spreken Ze Duetsch?

    Perhaps Germany should realize that unless Google has at least some servers on German soil they have no jurisdiction to make such a ruling. They could choose to block, not allow, Google and from an ISP standpoint refuse access. However, Google is an american business. Not a German business. Therefore it will be subject to U.S. law.

    If Google does in fact have strong connections to Germany they may have to comply with German law. But just because people in Germany are able to access Google online should by no measure make them liable. Someone should tell the German courts this falls under Censorship.

    Does anyone know if Google has setup any operations in Germany? If not these are some pretty far out rulings by the courts.

     

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  6.  
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    Urban, Oct 14th, 2008 @ 11:20am

    Re: Re:

    Works, but then this completely legit company starts selling completely legit keys that by magic unlocks any vehicle by the click of a button.

    Is it now up to the owner of the car to further protect his possession or is it up to a higher power to correct the screw up.

     

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  7.  
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    Anonymous Coward, Oct 14th, 2008 @ 11:26am

    oh geze...these IP conversations are getting ridiculous

     

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  8.  
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    Anonymous Coward, Oct 14th, 2008 @ 11:30am

    Re:

    it is commentary. google comments on the images by speculating that they might be relevant to your search terms.

     

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  9.  
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    Medbob, Oct 14th, 2008 @ 11:33am

    The court's logic IS flawed...

    Uh... We're talking about stealing here...
    The Internet is simply an API for information. The reason for placing an image, a link, or a paragraph on it, is to distribute the information freely to all.
    If you wish to encumber that freedom, there are established methods to do so. You can use a robots.txt file to tell search engines that you don't want to be indexed.
    You could also use VPN or encryption technologies to prevent the information from being distributed.
    The point here is that it is either freely accessible or it isn't. With computers, everything really boils down to being binary. If the judge cannot understand all the elements above, then he should pass the case to someone who does.

     

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  10.  
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    Anonymous Coward, Oct 14th, 2008 @ 11:35am

    Re:

    furthermore, it is NOT like saying "if you don't want your car stolen, don't park it outside" since nothing is being stolen in this case.

    It is more akin to saying "if you don't want people to make fun of what you say, then don't say anything." Maybe you make money off of your clever words... so what? Folks are still going to make fun of it, and quote whatever portions are necessary to make fun of it. You'd better keep your clever words to yourself.

     

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  11.  
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    Ben, Oct 14th, 2008 @ 11:35am

    Three things.

    There are three things I'd like said here.

    #1 - The artist benefits from their art being found - unless it was posted on a website that didn't own the copyright, which I agree would be the originating website's fault. The point of having things online is to get people to find your webpage. People usually LIKE traffic being generated for their work.

    #2 - If you go try out Google's Image search, there are no Google ads on the page - so Google isn't even making money on the image search (unless they provide some kind of search placement for a website's images - I'm not that familiar with all of Google Ad's option).

    #3 - If the page is indexed in the search option instead of the image option, and the title is a copyrighted phrase (like "Let's Get Ready to Rumble" or "Superbowl") then can displaying that link be construed as infringement as well or is it just images? How about Street View that shows a copyrighted store sign?


    All that being said, I still can't understand why someone would have a problem. Who brought this lawsuit up in the first place? And isn't common practice to request a cease and desist before a lawsuit is filed? And can't you prevent Google from indexing your site as Post #4 suggested?

    There's got to be something more here - this by itself makes no sense whatsoever.

     

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  12.  
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    Anonymous Coward, Oct 14th, 2008 @ 11:36am

    Re: Re: Re:

    but after the car is "stolen" it is still sitting there for everyone else to "use".

     

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  13.  
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    LogicMaze, Oct 14th, 2008 @ 11:40am

    Flaws abound

    Doesn't every web browser - upon viewing a web page - cache a copy of every piece of that page? Images, text, code, etc? So by this example, aren't all web browsers violating copyright law?

     

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  14.  
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    Anonymous Coward, Oct 14th, 2008 @ 11:41am

    Re: Spreken Ze Duetsch?

    I am pretty sure they sell an ad or two to german firms. It would be a shame if the german authorities interrupted that.

     

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  15.  
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    Andrew E. Baumann, Oct 14th, 2008 @ 11:44am

    parallel lines?

    The answer to this question might depend too much on German law to be answered here, but if thumbnails -- which only uses that fraction of 'information' remnant from the original that survives the decrease in resolution -- are infringement, then why wouldn't text blurbs in a text search engine be infringement?
    In both cases the relationship between source and 'blurb' seems the same (in that the majority of the original is shed, and only enough information is kept to see if the original is useful to the searcher); and the relationship between the search engine and the 'blurb' is the same (an automatic fracturing of the whole into a referential but limited 'image').

     

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  16.  
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    snowburn14, Oct 14th, 2008 @ 11:44am

    Re: Re:

    OK, I'm game. I'll explain how they're the same thing...
    Both are acts by which you come into possession of something that isn't yours and you have no legal right to. And in both cases, the law grants the "owner" the right to decide whether or not they wish to share their "property" with anyone else, as well as whether they want to charge a fee for access.
    What I'd like to know is, if an artist (or whatever copyright holding category you prefer) chose not to allow anyone access to his work, would you then claim the right to lift it from his hard drive and distribute it at will? No, probably not. So in what way does the artist selling it to someone else grant YOU the right to that content? You can argue that it's an obsolete business model all you want - and you'll be silly, because it's hardly an obsolete model if it continues to turn such a profit - but it has absolutely nothing to do with whether or not you have the right to something you didn't create, and for which you provided no compensation whatsoever to the creator. Personally, I agree that the "old" model will die in the near future, no matter how many new laws they successfully lobby for, because eventually those who haven't already will get over the fear of being sued for infringement. But an artist's choice to cling to an older business model doesn't give anyone the right to steal (yeah, I said it) their work, nor does the fact that it would be impossible to catch everyone who pirated content - or even a significant portion thereof. It does, however, make the whole argument somewhat moot, but I had nothing better to do on my lunch break than write this, so...yeah.

     

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  17.  
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    Anonymous Coward, Oct 14th, 2008 @ 11:46am

    Re: The court's logic IS flawed...

    It is apparently an API for retrieving information, subject to natural language regulations and fine print located at other urls which cannot be reliably predicted (well, except for robots.txt) which are proposed to have the force of copyright law. Hilarious.

     

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  18.  
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    Steven, Oct 14th, 2008 @ 11:51am

    Fair Use?

    I don't think fair use is that far off. Lets look at the four principals (from wikipedia).

    1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    2. the nature of the copyrighted work;
    3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    4. the effect of the use upon the potential market for or value of the copyrighted work.

    Let's focus on 3 and 4.
    For 3, in a thumbnail we have taken a smaller subset, literally a portion of the pixels with some smoothing thrown in. Arguably the smallest portion of the work that could be used and be useful.
    For 4, the potential market for, or value of, the copyrighted work is in no way diminished here. Google has made it much more available, easier to find, and has expanded the market quite dramatically.

    Of course this is all based on US law and probably has little to no baring on Germany courts.

     

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  19.  
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    Steven, Oct 14th, 2008 @ 11:56am

    Re: Re: Re:

    Nobody (at least not in the post you replied to) said infringement was right, but it is not the same as theft. The key difference being theft deprives the owner of the item in question, infringement does no such thing.

    If I steal your car, you no longer have a car. If I make a copy of your picture, you still have and can do what you want with that picture.

     

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  20.  
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    mslade, Oct 14th, 2008 @ 12:02pm

    Re:

    "It is like saying, if you don't want your car stolen, don't park it outside?"

    No, because Google isn't stealing images. The images are still there. The flawed logic in this (and many similar) situations is that the intarweb is generally public. If you put access control in place, then your content is protected from bots and what-not. Or you can use a robots.txt file, which some spiders respect. But the bottom line is: if you put your content on the web, it is now publicly available. Anybody can see it.

    The only argument left, then, is that Google's doing something wrong by embedding your image on their page. You might have something, there. Personally, I think that's just as silly, especially considering that Google isn't providing any sort of commentary or anything. Just the image, linking to your site.

     

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  21.  
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    Rick, Oct 14th, 2008 @ 12:03pm

    The car analogy is stupid. The car being stolen is illegal. Taking a picture of the car is not.

    Google did not steal the image, they took a picture of it, a degraded one at that - that is fair use.

    Robots.txt is the solution as they can stop Google from indexing their images altogether if they so choose. By suing, all they are doing is wasting the courts time and resources.

    They should be the ones fined for their abuse, not Google.

     

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  22.  
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    Mike (profile), Oct 14th, 2008 @ 12:04pm

    Re:

    It is like saying, if you don't want your car stolen, don't park it outside?

    Not at all. It's like putting a big sign outside your house that shows people how to copy your car, and then complaining that people copied your car.

     

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  23.  
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    Estigy, Oct 14th, 2008 @ 12:12pm

    Re: Fair Use?

    Hm, it's nice that you focus on 3 and 4, but what about 1 and 2?

    For 1: The purpose of the use is definitely commercial. Google's search index (along with its advertising business and some other things) is one of its biggest value. So I'd vote for the use being commercial.

    For 2: Since Google doesn't care if it creates a thumbnail of some totally irrelevant design element or of an important and highly valueable photo shot by a known artist, it's hard to simply wave that point away.

    Greets, E.

     

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  24.  
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    Evan Carslake, Oct 14th, 2008 @ 12:22pm

    Re:

    Can't you prevent the google webcrawlers from finding your image? If you paid for the web hosting you used to put your images on the web you certainly can with a robots.txt file.

    and correct me if I am wrong, but google is not the only image search engine around, just the most widely used.

    They are really not stealing any bandwidth. The thumbnail is saved on googles server. The servers suffers no bandwidth loss from a thumbnail of there image appearing in google results.

    If you want to argue that the googlebot indexing the images and websites in the first place is stealing bandwidth... well then you can say the same for any other person who purposely refreshes a webpage multiple times. It is really not a crime unless you have the intent of causing damage like a server crash, and a googlebot does absolutely no harm.

    "if the artist did not want there image found by google they should not have put it on the internet" should have better been stated:

    "if the artist did not want there image found by google they should look into how to prevent a googlebot from accessing there work"

    It is not difficult at all, and fact is most people would like there images shown as results in google images. Google has no way other than a robots.txt file to know you do not want your work indexed.

    It is up to the artist to tell google in that manor, not to index their work if they do not want it shown up in image search results.


    If you do not want your car stolen do not leave it running with the windows open and key in the ignition, which is what you are doing by putting your images online without a robots.txt file in the root directory of your webserver. You can prevent your car from being stolen, just the same as you can prevent your images from being indexed.

     

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  25.  
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    Anonymous Coward, Oct 14th, 2008 @ 12:29pm

    Where does it end?

    I am somewhat surprised that the majority of people feel the German courts even have jurisdiction here and are inclined to argue specifics.

    Google is no stranger to copyright battles and has appealed them before, which it did after losing a ruling in the Belgian courts in the long-running copyright dispute with Belgian newspaper association Copiepresses in 2007. Google-owned Youtube was sued in July by Viacom and media companies in Italy, France and Spain for infringement.

    We struggle with copyright law in the U.S. Is it possible that a majority of people think any country can take legal action against who ever they want? Can you even imagine all the potential cases from having to comply with every countries laws? Perhaps I am missing something here (Like Google has setup shop in all the above countries). Strange? In Mexico we cant apprehend criminals who are hiding out in Mexico. Yet, Germany can sue Google? Weird! Whats the point in Google's efforts to appeal? (Perhaps trying to not lose German advertising dollars?) I say if German courts dont like it they can censor it and not use it.

     

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  26.  
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    sniperdoc (profile), Oct 14th, 2008 @ 12:39pm

    Re: Spreken Ze Duetsch?

    Ummm actually that comment was pretty assanine. It'd actually be better for EVERYONE if there was a way to opt OUT of having the google spiders add a site to their search. Like a keyword put into the keyword content tag of a site.

    Some people PREFER not to have their site listed on Google. Maybe they don't WANT higher traffic. There are lots of reasons why Google having a huge database of images or websites is bad for copyright.

    Google allows people to find copyrighted images or content in general and then plagiarize the content without making an effort to get the original creator's permission. Given the actual law just states that someone has to "attempt" to contact the original creator of the content. But if no contact is made, you can use that content freely. Thanks to the Orphan Act. :( Lovely little piece of legislature.

    Allowing people to opt out of Online Search Engines would alleviate a lot of lies, stealing, and cheating in the real world. For those that choose to be found... that's their own mettle. At this point... everyone has NO CHOICE.

     

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  27.  
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    Anonymous Coward, Oct 14th, 2008 @ 12:40pm

    So does this mean that soon that sites like Amazon will no longer have pictures of the goods they sell?

     

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  28.  
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    Anonymous Coward, Oct 14th, 2008 @ 12:45pm

    Re: Re: Re:

    Much as I expected, you clearly DON'T understand the difference. I'll point out to you the same thing others have already done: Theft deprives you of your possession, infringement does not. Simple as that, but you can't seem to get that through your head.

    And your straw man arguments about "business models" and other BS, have nothing to do with the question that was posed. So, I'll ask the question again, and maybe this time you'll actually attempt an answer:

    Won't you please explain how linking is equivalent to stealing?

    And this time, if you'd like full credit (actually, any credit) for your answer, leave out the BS about business models, and turning a profit, and any of that other nonsense that doesn't answer the question.

    A reminder: This isn't a question about business models or profit. But if you had any sort of reading comprehension, you would have figured that out already.

     

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  29.  
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    Anonymous Coward, Oct 14th, 2008 @ 12:52pm

    Re: Re: Spreken Ze Duetsch?

    You shouldn't really comment on subjects where you clearly have absolutely no clue. Talk about asinine.

    There is already a method to prevent spiders from crawling websites, and it's been around since the WWW was invented. It's called "robots.txt" and it works quite well.

    "Better to remain silent and be thought a fool than to speak out and remove all doubt."

     

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  30.  
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    Steven, Oct 14th, 2008 @ 1:28pm

    Re: Re: Fair Use?

    There is not a need to meet all four guidelines (and they are guidelines not strict laws). I'm not saying it's flawless, but it could be held up as an argument.

     

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  31.  
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    Rose M. Welch, Oct 14th, 2008 @ 2:36pm

    Re:

    ...if you don't want your car stolen, don't park it outside...

    That's not an equitable argument. It should be, 'If you don't want your car looked at, don't park it outside.'.

    You lose. Try again.

     

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  32.  
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    Hoeppner, Oct 14th, 2008 @ 2:46pm

    In latest news if you try to use Google image search from Germany the image has a black X over it to make it a new work. and when trying to search any remotely-German website it won't show up in search. Google translate for anything pertaining to the German language is seemingly missing as well.

     

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  33.  
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    Anonymous Coward, Oct 14th, 2008 @ 3:17pm

    I think the solution is simple. Google shouldn't index any German sites. Then they can see how well that works out for them.

     

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  34.  
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    Chad Allard, Oct 14th, 2008 @ 10:32pm

    It's a well known fact that you can prevent sites like google from indexing your website. If you have images or pages you want to protect, it's as simple as creating a tiny little file on your web space. I guess that's not simple enough in Germany?

    In any case, an alternative solution would be for Google to allow original content creators to have the ability of removing indexed images on their search engine by request. Other socializing networks that snatch images and text from various sites around the web often allow a user to remove that content with a simple request.... could Google not do this?

     

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  35.  
    identicon
    Anonymous Coward, Oct 15th, 2008 @ 8:27am

    Re: Re: Spreken Ze Duetsch?

    Ummm actually that comment was pretty assanine. Add the file robot.txt and simply choose what you don't want it to see. Allowing people to opt out of Online Search Engines by following the robots exclusion standard would solve all these problems except they wouldn't get cash from suing, or any other source since they are completely incapable of understanding how to profit online.

     

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  36.  
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    Luna Loof, Oct 15th, 2008 @ 10:34am

    As a German I'm not surprised by this ruling at all. I didn't need to search for the court which has made this ruling, as it was obvious that only the court in Hamburg would make a ruling like this. There seems to be a judge (or several of them) who constantly hand out rulings about intellectual property law which are absurd.

     

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  37.  
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    John, Oct 15th, 2008 @ 4:02pm

    I'm confused...

    Let's forget about all the stealing-cars analogy for a minute and compare Google Image search to something similar: any other indexing service.

    Is it "copyright infringement" or "theft" if a library lists books using the copyrighted titles? Can JK Rowling sue the library because they list the words "Harry Potter" in their list of books?

    Either way (a library or Google), the user has to go to the source to see the original item. Doesn't this help the original artist get more visitors? How is Google "stealing" anything?

    And how is Google different from Yahoo Image Search... oh, that's right, Google is a much larger target. It's funny how you don't hear stories like this involving Yahoo or universities who might be working on similar technologies.

     

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  38.  
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    nobody, Jan 12th, 2009 @ 8:15am

    lame

    I just wanted to add a point about the whole infringement clause. Google does have ads which create a profit. However google is providing a service as a search engine to find relevant links. Google is gaining from the service, not from distributing pictures, right? Google is not taking pictures and selling them, or using them in their own way for profit. It seems that any search engine should be sued with this theory, because posting a link to a website, or a companies name/slogan could be infringement.

    All in all this is really dumb, and obviously whoever brought this all up in Germany is just an ass.

     

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  39.  
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    a2zjoks, Jul 8th, 2009 @ 10:56am

    Google Image Search

    Hi, Now you can search images based on colors.
    Website: http://www.googleimages.co.in/

     

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  40.  
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    Charles Smith, Aug 20th, 2009 @ 8:08am

    GOOGLE helping folks steal images

    I have a very nice 1969 PORSCHE 911S.
    It's made in Germany.
    It was designed by Ferdinand "Butzi" Porsche.
    In the US cars and everything else is designed ultimately by shareholders.
    That's why American products are junk.

    How many of you bought a car without looking at the engine?
    See what I mean?

    I lost a very nice food photography account because my client now steals photos from other websites. Google helps them find and steal copyrighted photos.
    I wish Google would help me rob banks.
    They could scout the local banks and tell me which ones had lot's of cash on hand.
    Then they could guide me inside where I could gather up the cash.
    Then they could shield me from apprehension by leaving no trail.
    Maybe someone would recognize the Ben Franklin I was spending in HAWAII...
    I'll bet not!

    Europeans realize the value of their smarter and more creative minds. That's why they protect them.
    We care only about short term gain.
    That's our recipe for mediocrity!


    I'll bet GOOGLE wouldn't mind me using their trademarks and source code-

    IF THEY NEVER KNEW!

     

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  41.  
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    Itsik Heyman, Dec 11th, 2011 @ 4:18am

    Don't get it - why do you publish on the internet in the first place

    if not to get to a large audience as possible? If you wish to limit the use of your data, you can - at the price of limiting the audience you will get to.
    Any such regulation will hurt the publishers more than the search engines.

     

    reply to this | link to this | view in thread ]


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