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Google and fair use

The 9th Circuit Court of Appeals' ruling today in Perfect 10 vs. Google and Amazon is a clear victory for search engines and tech companies -- and a clear defeat for copyright holders -- on a couple of fronts. But it also includes some language that could conceivably spell trouble for YouTube, MySpace and other user-generated content sites in their legal battles with the entertainment industry.


First, a little background. Perfect 10, whose publishing business is built around pictures of nude women (sorry, you'll have to find the site for yourselves), accused Google and Amazon's A9 of infringing its copyrights through their image-search services. According to Perfect 10, those services would help users find sites with unauthorized copies of Perfect 10's pix. What's worse, the search results themselves would include two versions of the infringing snaps: a thumbnail-sized picture in the top margin, and the full-sized picture in the main frame. Why would anyone bother to pay Perfect 10's subscription fees or sign up for its mobile-phone downloads if Google and Amazon made the images available for free? District Court Judge A. Howard Matz granted Pefect 10's request for a preliminary injunction blocking Google's thumbnails (which fed Amazon's search engine), but refused to block the full-sized images.

The appeals panel agreed that Google couldn't be held directly liable for the full-sized images because all it did was link users to images stored on other companies' Web servers. Its own computers did not copy, distribute or display those images. But the panel also gave Google a pass on the thumbnails, which were stored on Google's computers. The thumbnails amounted to a fair use of the copyrighted images, the panel ruled, mainly because they were a transformative use (that is, the pictures were employed as a research tool, not art) with a significant public benefit. To make a long argument short, the reasoning on the latter point had more to do with the value of search engines than the merit of free pictures of nude women.

On the other hand, the 9th Circuit said Matz was wrong to reject Perfect 10's claim that Google contributed to the infringements done by other Web sites. The panel sent the case back to him, saying he should apply this test:

Accordingly, we hold that a computer system operator can be held contributorily liable if it "has actual knowledge that specific infringing material is available using its system," Napster, 239 F.3d at 1022, and can "take simple measures to prevent further damage" to copyrighted works, Netcom, 907 F. Supp. at 1375, yet continues to provide access to infringing works.

The "take simple measures" has typically been interpreted to mean that a site removes infringing material when asked by the copyright holder. And the 1998 Digital Millennium Copyright Act, which Congress passed partly in reaction to the Netcom case, provides a strong defense against copyright infringement claims for Internet services that comply with its notice and take down provisions. Still, Mark Lemley, a law professor at Stanford University and an expert in copyrights, said the 9th Circuit's decision could open the door to later rulings that require Internet services to do more to protect copyrights because new technology made it easy to do so. That's a slippery slope, he said, that could put the courts in the uncomfortable position of mediating technical disputes between Internet companies and content providers over how Web-based services are designed.


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Times editorial writer Jon Healey pens opinion pieces about a variety of business issues, and blogs about technologies that are changing the entertainment industry's business model.

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