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.
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  1. identicon
    SailorRipley, 17 May 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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