Perfect 10 v. Google

In Perfect 10 v. Google, Inc., 04-9484 (C.D. Cal, Feb. 17, 2006), US District Judge A. Howard Matz ruled that “Google’s creation and display of ‘thumbnails’ likely do infringe P10’s copyrights. The Court also concludes, however, that P10 is not likely to succeed on its vicarious and contributory liability theories.”
The court adopts the “server test” for judging whether a web site infringes on the copyright owner’s display right: Direct linking to an image file does not infringe upon the display right. Serving it from one’s own server does infringe.
The finds that Google Image Search does not engage in fair use when it creates thumbnail images of P10 files that are freely available on the web, as the result of infringing acts of third parties. Perfect 10 has a commercial interest in thumbnails– it has licensed thumbnails to a mobile phone service. This is the deciding factor in distinguishing Google from Arriba Soft. Kelly, the plaintiff against Arriba Soft, did not have a commercial interest in thumbnail images. Here, because P10 executed a licensing deal to make money off of thumbnail images for a mobile service, that Google’s image search was not fair use, because P10 established that it had commercial interest in thumbnail images.
In its ruling granting a preliminary injunction, “P10 has established a likelihood of success on the merits that creating and serving thumbnail images does directly infringe P10’s copyrights.”
In deciding that Google is not contributorily liable for facilitating infringement of P10 images, the court differentiates Google Image Search from Napster, finding that Google only resembles Napster in facilitating searching. Napster also facilitated file transfer from otherwise unaccessible hard drives. Google helps searchers locate “information (text, images, video, newsgroup discussion threads, blogs, academic papers, price information, maps, driving directions) found on the entire, publicly available web.”
The court ruled that Google is not vicariously liable, because google lacks sufficient control over the web for vicarious liability. “Google does not exercise control over the environment in which it operates– i.e., the web. Google’s ability to link from its search index does not render the linked-to site inaccessible.… If the phrase ‘right and ability to control’ means having substantial input into or authority over the decision to serve or continue serving infringing content, Google lacks such right or ability.”
William Patry: Google Nudes: “The court’s fair use analysis and its attempt to both follow and distinguish Kelly v. Arriba is disappointing, a bit of a tally up the factors and see who has more (Plaintiff 3, Google 0, a draw on the third factor).”
William Patry: Google Nudes II: “In considering Google’s use also “consumptive,” I think the court erred significantly, and not only for the reason given yesterday (the markets are different): the harm from cellphone downloading, even if real (I can’t imagine it is), occurs only with English users. I don’t see how that is relevant in a U.S. case.”
Fred von Lohmann, Electronic Frontier Foundation: Perfect 10 v. Google: More Smooth Than Crunchy: “While you wouldn’t know it from the headlines, I think yesterday’s preliminary injunction ruling against Google will be remembered as a little bad for Google, but a lot good for the Web.”
John Ottaviani, Technology & Marketing Law Blog: More on Perfect 10 v. Google: “Leave it to the porn industry to make copyright law on the Internet.… It seems like the court took reasonable and defensible positions here in applying 1970’s copyright law to Google’s 21st Century Internet practices. Also, Google is not Napster, but once again we see the risks of basing one’s business, or part of one’s business, on the “fair use” defense. ”
C.E. Petit, Scrivener’s Error: Cassandra Was Here: “There appear to be four fair-use factors—just not the four specified in § 107. To begin with, the first and fourth factors (broadly, the “commercial necessity” factors) generally get conflated and weighed as at least half of the fair use equation. P10 v Google is an excellent example of this; Judge Matz’s decision is a classic example of counting the same “facts” twice in his analysis of the first and fourth factors. What this basically says is that, with only very rare exceptions, the first and fourth factors will point the same way anyway. It also gets into the “fifth fair use factor”—the one that the Copyright Office’s Orphan Works Report didn’t quite acknowledge was driving the entire inquiry: administrative convenience.”
Wendy Seltzer: Google Wins Some, Loses Some, in First Round versus Perfect 10: “Yesterday, the California Central District issued an order (local copy) that’s a mixed bag, but gets a lot right in its description of how copyright works on the web.”
Xenia P. Kobylarz, Law.com: Perfect 10 Racks Up Preliminary Injunction Against Google: “A Los Angeles federal judge ruled Friday that the Internet search engine’s image search feature, which displays thumbnail versions of images found on other Web sites, probably infringed a Web pornographer’s copyrights.”
LA Times: Google’s image search set back: “If upheld, the judge’s preliminary ruling could throw a kink into the way Mountain View, Calif.-based Google collects and displays photographs in the image portion of its search engine. Lawyers not involved with the case said it would have little effect on Google’s overall business, which generated $6.1 billion in revenue last year.”
Martin Schwimmer, The Trademark Blog: Perfect 10 Obtains Injunction Against Google’s Use of Thumbnail Images “The thought occurs as I read this section that Google makes this go away by cropping a corner off the thumbnail (or perhaps reproduces thumbs using sepia tone).”
NY Times: Ruling May Undercut Google in Fight Over Its Book Scan: “Representatives of publishers and authors who have filed lawsuits against Google over its Book Search program said they believed that the decision raised questions about a case that Google had cited in its defense of the Book Search program.”
Michael Madison: District Judge Scores a Perfect 10: “I read the judge as concluding that the public interest in having free access to Perfect 10’s photos is less than the public interest in having access to Les Kelly’s photos. In other words, Perfect 10 has done more than Les Kelly did to make the photos into mere commodities, but precisely for that reason there is no reason to make them more widely available than they already are.”
William Patry: Preliminary Injunctions and Affirmative Defenses: “One issue in the Perfect 10 v. Google, Inc. case was whether Perfect 10, in seeking a preliminary injunction, bore the burden not only of establishing a likelihood of success on its prima facie case, but in also establishing it was likely to overcome any affirmative defenses Google asserted, in that case fair use. Judge Matz, following the district court decision in the Dr. Seuss case, held that Perfect 10 did bear that burden. The opinion, however, missed contrary authority, and perhaps most importantly, understandably did not discuss a Supreme Court opinion handed down the same day (February 21) that held to the contrary.”