EFF has filed an amicus brief in the Perfect 10 v. Google appeal to the Ninth Circuit. The case focuses on whether an image search engine can be held liable for displaying thumbnails of copyrighted images that were posted on third-party web sites without permission of the copyright holder. Judge Matz’s decision appears to be in tension with the Kelly v. Arriba Soft decision, which found that search engine thumbnails are a fair use. Here’s EFF’s argument:
Copyright law grants to rightsholders a limited set of statutorily defined exclusive rights, supplemented by narrowly drawn, judge-made principles of secondary liability. That set of rights plainly reaches the infringing activities of websites that amass and post unauthorized copies of Perfect 10′s photographs. Unsatisfied with the remedies afforded by copyright law against these infringers, Perfect 10 and its supporting amici urge this Court to expand the reach of copyright law to the four corners of the digital universe, ensnaring everyone from the individual web surfer who comes across a Perfect 10 image online, to search engines like Google that index these images alongside billions of others on the Web. Like the District Court below, this Court should reject this effort to hold the whole world liable for the infringing acts of a few.
As I wrote back in February, Judge Matz’s fair use analysis is deeply flawed:
Google Image Search doesn’t give any particular preference to web sites that serve up AdSense ads. And AdSense serves up ads regardless of what search engine brought the user to the site. If Google cancelled Google Image Search altogether, there’s little reason to think AdSense would suffer financially–users would likely find the same pages using other search engines… Google Image Search and AdSense are unrelated products. It makes no sense to consider them as a single product for the purposes of fair use analysis. That should be obvious to anyone with substantial experience using the web. It seems like a reasonable assumption that Judge Matz isn’t the most Internet-savvy guy around.