Common Sense Prevails on Perfect 10

by on May 16, 2007 · 2 comments

Good news from the Ninth Circuit, which overturned Google’s loss in last year’s Perfect 10 decision. Here’s what I said about the case back when it was decided:

Google Image Search is a search engine for images. It does not serve ads. AdSense is a third-party ad program whereby any website on the Internet can allow Google to place ads on their site in exchange for a cut of the revenues. The relationship between these programs is… well, there isn’t really a relationship, except they’re both Google products. Sometimes users find infringing pages using Google Image Search that have AdSense ads on them. The court decided this was evidence that Google Image Search was profiting off of infringement.

But that’s ridiculous. 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.

If this standard is to be taken seriously, search engine companies are going to have to divest themselves of all other online services that might involve infringing copyrights. Yahoo! will have to sell off GeoCities. Microsoft will have to stop selling IIS, its web server.

But Mike at Techdirt warns that the case might not be over:

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.

  • Doug Lay

    This is a really nice decision, and I hope it stands as a nationwide precedent. The money quote is this:

    “We conclude that the significantly transformative nature of Google’s search engine, particularly in light of its public benefit, outweighs Google’s superseding and commercial uses of the thumbnails in this case.”

    You can bet this quote will find its way into Google’s responses to the AAP and Authors Guild lawsuits against the Google Library project! Nice to see a court recognize that Fair Use has value and importance, even in a commercial context.

    I wouldn’t worry about the secondary liability stuff. There are multiple defenses to that line of attack.

  • Doug Lay

    This is a really nice decision, and I hope it stands as a nationwide precedent. The money quote is this:

    “We conclude that the significantly transformative nature of Google’s search engine, particularly in light of its public benefit, outweighs Google’s superseding and commercial uses of the thumbnails in this case.”

    You can bet this quote will find its way into Google’s responses to the AAP and Authors Guild lawsuits against the Google Library project! Nice to see a court recognize that Fair Use has value and importance, even in a commercial context.

    I wouldn’t worry about the secondary liability stuff. There are multiple defenses to that line of attack.

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