Thursday, May 17, 2007

Image-search isn't a copyright violation

Yesterday, the Ninth Circuit Court of Appeals handed down a mixed blessing in its ruling on the long-running Perfect 10 v Google lawsuit, in which Perfect 10, a photography site, sued Google for including thumbnails of its images in the Google Image Search results. Perfect 10 also sued Google for indexing infringing copies of its images that appeared on other sites.

The Ninth said that Google's Image Search thumbnails are fair use -- that's the good news. The less-great news is that the court also ruled that Google is a "secondary infringer" where it has "actual knowledge" of copycat sites in its index and fails to do anything about it.

Today's decision reversed the lower court's holding [PDF] that Google's thumbnails were not a fair use, following and bolstering an earlier image search engine precedent, Kelly v. Arriba Soft [PDF]. The court rightly took into account the important public benefit that search engines provide -- not simply the impact on the particular parties in this case -- and what would serve copyright's fundamental goal of promoting access to creative works. While Google's transformative use of the image provided a very real public benefit, Perfect 10's potential loss of thumbnail licensing revenue was highly speculative.

The Court also shot down Perfect 10’s claim that Google was displaying the full-sized versions of infringing images from third-party websites by framing them or providing an HTML in-line link tag to end users. The Court correctly discerned the technology at issue, finding that when you frame a page or provide an in-line link, it’s the site that you’re pointing to that could be displaying the picture, not the search engine that coughs up the HTML.