Google just lost a court battle that raises questions of fair use. United States District Judge A. Howard Matz ruled that the search engine’s image search feature, which displays thumbnail versions of photos found on websites, probably violates U.S. copyright law. The ruling stems from a lawsuit filed in 2004 by adult-oriented website Perfect 10. As a consequence of the ruling, Judge Matz is awarding Perfect 10 a preliminary injunction against Google. Lawyers on both sides of the case now have until March 8 to propose the wording of the injunction.
To those of us watching the situation, it’s almost surprising that someone hasn’t won an injunction against a search engine sooner. Don’t get me wrong; with the explosive expansion of the Internet, search engines perform a vital service. There is a lot of information online that is free for the viewing, probably the vast majority in fact. But even some of the free information is copyrighted, which means that it is subject to certain laws covering how it can and can’t be used. These laws vary to some degree by country (though there are international treaties concerning intellectual property).
The issue gets complicated whenever serious money is involved. To give you an example, I have a friend with a regular job who is a singer/songwriter on the side. He even has a number of albums out, which he produced himself, and has made some money off of those albums and some songbooks he also produced himself. Believe it or not, people have pirated his music. He’s of two minds about this. On the one hand, he’s not exactly happy about the loss of money; on the other hand, he sees that as a form of publicity, helping get the word out about his work. Maybe some of the people who stole his music will actually buy it later. So far, he’s happier that people are that interested in his music, but he might feel differently if he was trying to make a full-time living with his music.
This is probably one reason why we haven’t seen the kind of injunction Perfect 10 won against Google issued sooner. Search engines act as a form of publicity about copyrighted material, as any SEO knows, and the “buzz” might be more valuable than the money. But when the search engine itself effectively gives away material that the copyright holder is trying to sell, that may go beyond fair use. In the Perfect 10 vs. Google case, that’s part of the issue at stake.
The doctrine of fair use in United States copyright law has developed through a good number of court decisions over the years. To some degree, it continues to evolve, as anyone following the various legal cases involving the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) can see. The fair use doctrine, however, has been codified in section 107 of the copyright law.
Fair use pertains to the purposes and conditions under which someone other than the copyright holder has the right to reproduce a copyrighted work. These include criticism, comment, news reporting (one of my personal favorites), teaching, scholarship, and research. As mentioned, there are specific conditions involved in determining whether or not a particular way that someone is handling a copyrighted work falls under fair use. To quote from the U.S. Copyright Office’s information page on the subject, the factors that must be considered include:
• the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
• the nature of the copyrighted work;
• amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• the effect of the use upon the potential market for or value of the copyrighted work.
To a greater or lesser degree, Google fell afoul of at least three of these factors. To understand that, it helps to understand the specifics of the case. I will take each of these factors in turn and explain their relevance to the situation.
First, let’s look at the purpose and character of the use. Perfect 10’s website includes a members-only section. It charges a $25.50 monthly subscription fee for users to access the more than 3,000 photos of nude models on its website. But it has been having serious problems with pirates who pay the fee, then copy the images onto sites that are indexed by Google and incorporated into the search engine’s image search feature.
Google is not a nonprofit educational company. Users might not pay specifically to use the search engine, and many web surfers may use it for educational purposes, but that’s beside the point in this case. What looks very relevant, though, is that Google is an advertising company, and that it receives AdSense advertising revenue from some of the photo-pirating sites.
The second issue concerns the nature of the copyrighted work. We’re talking nude photos of “beautiful natural women,” according to Perfect 10. Photographs can certainly be copyrighted, but Google tried to argue that Perfect 10’s photos weren’t creative. Works that are creative, according to legal precedent, are closer to the core of intended copyright protection than more fact-based works. Aesthetic, creative photographs thus fit right within these intentions. But Google insisted that P10 “emphasizes the objects of the photographs (nude women) and [P10] assumes that persons seeking Perfect 10’s photos are searching for the models and for sexual gratification.” Therefore, according to Google, the photos are of a more “factual” rather than creative nature.
Judge Matz rejected this argument, and rightly so. Good nude photography demands a greater level of skill than you might think. Many considerations go into a quality picture, including lighting, posing the model, general composition of the picture, photo angle, and so on. The fact that these are nudes does not mean that the photos are of a more “factual” rather than “creative” nature: is the Venus de Milo more factual than creative because it is scantily clad?
The third issue to consider is the amount and substantiality of the portion used in relation to the copyrighted work as a whole. Google displayed thumbnails of the photos. A thumbnail is a lower-resolution version of the full photo. P10 argued that Google could have used text to help searchers find images rather than the thumbnails, but the court rejected this argument.
It’s a bit of a sticky issue. Normally, wholesale copying of a work would tend to militate against a finding of fair use. However, another legal precedent states that, if the secondary user (that would be Google in this case) copies only as much of a copyrighted work as is necessary for the intended use, then it won’t weigh against him or her. Judge Matz ruled that the thumbnails constituted an amount of copying required for Google’s intended use, which is “quickly and accurately conveying the content of indexed full-sized images.”
Finally, I will address the effect of Google’s use of the thumbnails upon the potential market for or value of the copyrighted work. If anything single point blew Google’s case out of the water, it was this one. You see, Perfect 10 has been working on a number of ways to monetize those thousands of nude photos. It sells magazines at newsstands for about $8 an issue, and also by subscription; it sells monthly subscriptions to its website, as previously mentioned; and, in early 2005, it entered into a licensing agreement with Fonestarz Media Limited. It is this agreement which Google’s thumbnail image search threatens.
The agreement concerns the worldwide sale and distribution of P10’s reduced size copyrighted images for download and use on cell phones. Since P10 entered into the agreement with UK-based Fonestarz, it has sold, on average, about 6,000 images per month in the UK. The images are offered as a subscription service.
Google’s thumbnail images are very similar to what users get through the Fonestarz subscription service. Users can download Google’s images at no cost. According to the court, “Common sense dictates that such users will be less likely to purchase the downloadable P10 content licensed to Fonestarz.” Therefore, Google’s thumbnails could harm this particular market.
Looking outside of the one case, it is tricky to predict where matters will go from here. Google currently faces a number of plaintiffs that believe the company violated copyright law, but the cases do not specifically concern the company’s image search feature. The Authors Guild sued Google in September of last year, saying that the Google Print Library Project violated copyright law. The Agence France Press news agency slapped the search engine with a lawsuit as well. It maintains that Google used photos and headlines in violation of the law.
As far as copyright-related cases on which the courts have already ruled, Google’s record has been mixed. It won a case against Geico when a judge ruled that it was legitimate to sell ads linked to trademarks, but it lost a case in France. As far as actual Google features, a federal judge in Nevada ruled that, even with copyrighted works, the search engine’s cache feature is “fair use,” which should relieve the other major search engines. Still, we can expect to see the courts wrestling with the full copyright implications of search technology for years to come.