Federal Appeals Court Clarifies Online Fair Use

Article excerpt

How could the Internet function if every click from a search engine to Web-based content carried the risk of copyright infringement with it? This was the question a federal appeals court in California answered partially in May, when it held that search engine giant Google was not liable for copyright infringement when it linked to a publisher's thumbnail images, despite the publisher's request to refrain from doing so. The decision in Perfect 10 v. Google (http://tinyurl.com/2epgkf) helps clarify the boundaries of fair use in the online environment. But does the opinion have a broader impact?

Let's take a closer look at Perfect 10's copyright infringement lawsuit, which includes an analysis of the federal trial and appeals court decisions. I have also explored what the decision means for the future of Web-based information access--including search engine indexing, linking, and framing--and how it may impact Google's ongoing litigation with publishers over the Google Book Search project.

Girls on Film

This controversy started in 2001, when Google began receiving complaints from Perfect 10 that the search giant's display of Perfect 10's thumbnail images was a copyright violation. Perfect 10 markets, sells, and licenses copyrighted images of nude models. The company also owns and operates a password-protected, subscription-based Web site; subscribers pay a monthly access fee to view Perfect 10 images.

Although Perfect 10's images are copyrighted, many of them are free through Web sites that have no affiliation or contractual relationship with Perfect 10; many of these images are published illegally without Perfect 10's permission. Several search engines--including those from Google and Amazon.com--routinely pick up and link to Perfect 10's images. (The availability of Perfect 10's images can be verified by searching Google Image using the search terms "perfect 10" or "perfect 10.")

Perfect 10 sued Google for copyright infringement in November 2004; the content provider followed with a copyright infringement lawsuit against Amazon in June 2005. Shortly after filing the lawsuit against Amazon.com, Perfect 10 asked a federal district court for an injunction that would have kept Amazon and Google from "copying, reproducing, distributing, publicly displaying, adapting or otherwise infringing, or contributing to the infringement" of Perfect 10's photos or linking to Web sites that provide full-size infringing versions of Perfect 10's photos. After consolidating the lawsuits, the district court denied Perfect 10's injunction request against Amazon. com but granted the injunction request against Google.

In enjoining Google from publicly displaying Perfect 10's images, district court judge A. Howard Matz concluded that Google's creation and public display of thumbnails infringed on Perfect 10's copyrights. Matz also rejected Google's fair use argument. "The Court concludes that Google's creation of thumbnails of P10's copyrighted full-size images, and the subsequent display of those thumbnails as Google Image Search results, likely do not fall within the fair use exception," Matz wrote. "The Court reaches this conclusion despite the enormous public benefit that search engines such as Google provide. Although the Court is reluctant to issue a ruling that might impede the advance of internet technology, and although it is appropriate for courts to consider the immense value to the public of such technologies, existing judicial precedents do not allow such considerations to trump a reasoned analysis of the four fair use factors."

Google Appeals Fair Use Rejection

Recognizing the importance of this issue, many parties (including Internet service providers, communications coalitions, and the Consumer Electronics Association) supported Google's fair use position during the company's appeal to the federal appeals court. The Electronic Frontier Foundation (EFF) and five library representative organizations filed a "friend of the court" brief on Google's behalf in which they argued that holding Google liable for copyright infringement for linking to protected images would threaten the activity of virtually every online user. …