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Ruling May Impact Google Book Search Case 172

Posted by Zonk from the their-lawyers-must-be-workaholics dept.
jsherman256 wrote to mention an NYT article discussing another possible problem on Google's legal front. A court decision in another case may spell trouble for their 'book search' technology. "In the recent case, Judge A. Howard Matz of United States District Court for the Central District of California, said Google's use of thumbnail-sized reproductions in its image search program violated the copyright of Perfect 10, a publisher of X-rated magazines and Web sites, because it undermined that company's ability to license those images for sale to mobile phone users ... 'I think it takes the wind out of their sails,' Jan Constantine, the general counsel for the Authors Guild, said of the Perfect 10 decision. The guild and the Association of American Publishers brought copyright infringement lawsuits against Google over its Book Search program."
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Ruling May Impact Google Book Search Case More

Ruling May Impact Google Book Search Case

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  • ... is that they are planning to sell thumbnail sized reproductions of book covers or their contents to mobile users? What a promising concept!

    Sorry, couldn't resist.
    • No, they're planning to sell individual sentences, just like Google Book Search displays.

      At just 10 cents a sentence, reading books on your mobile phone is going to be even more popular than getting the latest ringtones!
  • Sounds like Perfect 10 was able to show economic harm (lost sales to cellphone users). I believe one of the criteria for fair use is that it doesn't cause economic harm.

    I don't see how a book search that only shows excerpts causes any economic harm. If anything, it will increase sales.

    IANAL.

    If I were Google, I would just drop perfect 10 from their search results entirely. I bet this would lose them more sales than thumbnails ever would.
    • I believe one of the criteria for fair use is that it doesn't cause economic harm.
       - Not exactly. Fair use criteria are defined out in USC Title 17, Chapter 1, Section 107 [cornell.edu]. There's no real hard and fast rule for how to apply those criteria. Courts tend to make judgement calls on a per-case basis. (Which is why lawyers make a fortune on this kind of litigation) Or, to put it another way, "None of these factors alone is sufficient to make a use fair or not fair - all of them must be considered and weighed. It

    • Sounds like Perfect 10 was able to show economic harm (lost sales to cellphone users)

      I don't really see how this can be the case unless we're talking about people who accessed images.google.com via their cellphone. Otherwise they would have been using a PC anyway and hence would have had access to the images on the Internet, and would not have formed part of the (really odd or desperate or stupid) market who want to look at tiny little low-res porno images on their cellphone for exorbitant prices.

      I thoug

    • Re:not sure this makes a difference for book searc (Score:2, Informative)

      by Anonymous Coward

      I believe one of the criteria for fair use is that it doesn't cause economic harm.

      The impact on the market is considered as a factor, but it is by no means the only factor, and other factors can easily outweigh it.

      Consider a book review that uses a few quotes from the book to show that it is utterly factually incorrect. That review could clearly cause significant economic harm, and yet it is still fair use because the other factors [stanford.edu] outweigh the impact on the market.

    • Re:not sure this makes a difference for book searc (Score:4, Insightful)

      by Jivha ( 842251 ) on Sunday February 26, 2006 @12:25PM (#14804138)
      "If I were Google, I would just drop perfect 10 from their search results entirely. I bet this would lose them more sales than thumbnails ever would."

      Yeah sure, that would work. I'm sure Google going, "you mess with us, you're off the grid" is just the news that the ever-increasing number of people wary of Google's growing clout are just waiting for.

      What next? Google removing Reporters without Borders from their index because they complained about their China policies?
      • It sounds like Perfect 10 doesn't want to be indexed by Google anyway. Google indexed them (and they probably never set up the robots.txt file anyway so it is their own bloody fault) and they sued.

        Considering how easy it is to prevent your site from being indexed, with this precedent I'm sure there are already people planning to "forget" to copy/paste "User-agent: Googlebot-Image Disallow: /" into a robots.txt file with the intention of suing Google over the included images.

    • The whole reason Perfect10 brought the lawsuit is that its copyrighted photos were shown by other sites, which were indexed by Google. So, removing Perfect10 from the search would not cure the matter.
  • This Lawsuit does not set a strong precedent for the two Google Book lawsuits. At least that's what I think, I encourage people who know differently to tell me I'm wrong.

    Both the Author's Guild [pcworld.com] and the American Association of Publishers [pcworld.com] lawsuits were filed in New York Federal Courts, while this was in California.

    • In theory -- precedent for district courts doesn't exist except as it applies to the case at hand.

      In reality, it can make a difference. A well reasoned, well thought out district court case which is on point will carry weight with other districts. For instance, the facts and legal ruling in Arkansas v. Jones has been cited and used 100's of times -- including by the Supreme Court, although it was never actually appealed. Kitzmiller v. Dover Area School District carries a similar type of weight.

      Althoug

  • Overturned by wiser heads (Score:5, Interesting)

    by lheal ( 86013 ) <lheal1999NO@SPAMyahoo.com> on Sunday February 26, 2006 @09:51AM (#14803721) Journal
    A little googling gave me some SEO site's take [searchviews.com]:
    The issue is that Google was indexing photos owned by Perfect 10 but made available on pirate sites that had stolen and profited from the prurient material. Another point was that some of the rip-off artists were Google AdSense users, and therefore Google had actually made money, in a roundabout way, from the infringement of Perfect 10's copyrights. The judge also determined that Google's mobile image search was cutting into Perfect 10's business, since the mobile "thumbnail images are essentially the same size and of the same quality as the reduced-size images that (Perfect 10) licenses to Fonestarz," a UK mobile firm, for a subscription-based cell phone service.

    Whether the images were pirated or not is not Google's problem. They should inform Google (who would doubtless take down the images) and go after the pirates. Google has no way of knowing who in the slimy world of online porn is the copyright owner, who is licensed, who is using stuff under fair use, and who is a "pirate".

    The judge made a mistake. Google's thumbnails were not the same thumbnails. They were a different expression of the same idea. Sleazy, but not illegal.

    • I was going to suggest that google might be in a different situation if they applied a logo to each thumbnail.
      This would allow people to view a thumbnail while still requiring someone to visit a site to get the picture.
      Or a norobots text or something like the broadcast flag embedded in the header of the image file.
      Sure it's removable but then it's placing the blame squarely on the site modifying the image.

      More worrying is the concept of Adsense being used to decide guilt upon the part of google. If
      • More worrying is the concept of Adsense being used to decide guilt upon the part of google. If a torrent search engiine site has google ads does that mean google gets hit with a lawsuit for illegal torrents?

        Turned around, does this mean we can go after the advertisers for hijacking our computers with adware and spyware?

    • The judge made a mistake.

      Judges don't make mistakes. The law is as the judges decree. The Constitution, too. Just ask the USSC, the US Attorney General, and a whole bunch of other people.

    • Google's thumbnails were not the same thumbnails. They were a different expression of the same idea.

      You've got that all wrong, I'm afraid. An idea, in the copyright sense is something like 'Boy Meets Girl' or 'The Butler Did It.' It's a very broad thing. An expression is a specific implementation of that idea, like Romeo and Juliet or some specific mystery novel. A slight variation on an expression, such as changing a few words, or making a slightly different thumbnail of the same image, is going to be infr

  • Super-impose "Copyrighted" on the image? (Score:4, Interesting)

    by ponchoboy ( 736747 ) on Sunday February 26, 2006 @09:55AM (#14803729)
    Why doesn't Google just super-impose "Copyrighted" on the thumbnail images? That way people really wouldn't want to use them for cell phones since they are distorted.

  • robots.txt? (Score:3, Insightful)

    by Spazmania ( 174582 ) on Sunday February 26, 2006 @10:16AM (#14803761) Homepage
    Can't all of these web sites exclude their material from Google by using the industry standard robots.txt file? I know that doesn't apply to the book search, but it certainly applies to Perfect 10's web sites. If so, why is there any legal challenge to Google's web site search functions?
    • yes, yes, slashdot and all, but please RTFA. The pictures were on a different website. Repeat after me, one cannot set a robots.txt on an external website.

    • Re:robots.txt? (Score:3, Informative)

      by mikiN ( 75494 )
      Book publishers have the means to exclude electronic searching as well, and have used this for as long as I know. (does that show my age?)
      It's in the disclaimer, which almost all books I know have somewhere on the first few pages. Relevnt part of it reads (approximately):

      "No part of this publication may be reproduced, either in part or in full, either photographically, electronically, or by any other means, without express permission of the publisher."

      There you have it, the dead-tree equivalent of 'robots.t
      • Yes, but there is also an opt-out that can be done using said robots.txt file and/or via Google's own website. Publishers whining and bitching and suing are just seeing the free-money aspect instead of sending someone to Google's page to do the five minutes of research that would yield how to fix the problem themselves, and for free without having to pay to file a case or pay lawyers.

        It is yet another example of how out of control things are since it hasn't yet been made difficult or impossible to sue becau
    • OK, I've said this in about 1000 comments already...but...

      Google was indexing these images from third party sites which had no right to show the images in the first place, not from perfect 10's servers. Please read the relevant articles before commenting again. Thanks!

      (...smacks Spazmania with clue stick...)
  • I don;t think many people want 2 inch porn pictures. Something about being in public and a three pixel tall vagina doesn't seem very.. masturbation friendly..

    Seems just an excuse to have a go at Google and get your name in the press.
    • Well, if your male member is only three pixels long in real life...
    • I don;t think many people want 2 inch porn pictures.

      Well, I dont know either who is crazy enough to pay for this, but I sure have seen a lot of ads for them on european late night TV.
      Probably the same people who paid 3$ for a 8kbps ring tone 6 years ago and who are now old enough to buy porn. (Seriously, why are people ready to pay insane amounts of money for incredible bad quality, just because it's on a cell-phone?)
  • If any other content owner manages to get indexed by Google they break out the champagne, but some author's association sue for the same kind of free marketing? Executive summary: Idiots.

    This is the way it's supposed to be:
    1. Create content
    2. Get indexed by Google
    3. ???
    4. Profit!!!

    But these numbskulls put "sue" in step number three and basically will never get to step four. Sounds like it's time for a class-action suit from their members against this so called "guild".

  • Constantine ... Jan Constantine ... a$$hole.

  • Missing pieces of information (Score:5, Informative)

    by NigelJohnstone ( 242811 ) on Sunday February 26, 2006 @10:51AM (#14803839)
    There's missing a key point:

    Perfect 10 blocked Google from indexing the site.
    Third party copied the content and put it on their own site.
    Google indexed that third parties site (not perfect 10's) compounding a existing copyright violation.

    Whereas the book publishers can simply tell Google which books they don't want scanned and so they've given implicit permission by refusing to list those books.

    Since fair use is a value judgement made by a judge interpreting a vague law, he sided with Perfect 10, but the same situation doesn't with the book publishers.

    • Whereas the book publishers can simply tell Google which books they don't want scanned and so they've given implicit permission by refusing to list those books.

      Do you actually own any books? Here's a typical line from the copyright page of one of mine:

      "All rights reserved, including the right to reproduce this book, or portions thereof, in any form."

      Seems to me the publishers already have told Google which books they don't want scanned, in no uncertain terms.

      Michael

      • "Do you actually own any books?"

        Yes, you bought it, tacked on terms are irrelevant. (IANAL)

        "Seems to me the publishers already have told Google which books they don't want scanned"

        * Yet that clause was put in those books prior to Google Book search existing, so it couldn't have been written with Google in mind.

        * It fails the 'is this contract fair' test too, since the courts have repeatedly rules that you can reproduce portions of the books and it's fair use.

        * The book publishers tolerate extracts in book r
        • * It fails the 'is this contract fair' test too, since the courts have repeatedly rules that you can reproduce portions of the books and it's fair use.

          Google isn't reproducing portions of the book, they are merely presenting portions of the book at any given time during a search. It is highly likely that the search engine itself could be considered a violation of copyright on this point alone.

          * Yet that clause was put in those books prior to Google Book search existing, so it couldn't have been written wit
          • ...you are agreeing or disagreeing with me.

            "Copyright awners are welcome to enforce their copyrights as they see fit."
            If that was the case, MPAA would have successfully killed Betamax, it isn't, they don't have a free hand.

            You should re-read the last sentence in my comment since it doesn't say what you think it does. The point being if we had to get permission for every use of copyrighted material (which is all material since copyright doesn't need to be declared) the world would grind to a halt, you wouldn
            • You DO have to get permission for every use of copyrighted material UNLESS it falls under the protection of fair use, which has a very limited scope ad doesn't cover what many slashbots think it covers.

              As for the metamax comment you made, well, I'm not even sure why you made it. Betamax is technology and the courts ruled that the technology itself wasn't enough to prove infringement or even contributory infringement. The MPAA could still sue people who used betamax tapes to infrige copyrights, or not if t
        • Yes, you bought it, tacked on terms are irrelevant. (IANAL)

          Copyright is not a "tacked on" term. It's law. Copyright is not a license, shrink-wrap or otherwise. Copyright gives the copyright holder the right to determine who can make a copy. Anyone the copyright holder does not designate as authorized to copy is, by default, not authorized to make a copy. The only exception to this is copying that falls under fair use.

          * Yet that clause was put in those books prior to Google Book search existing, so

          • "Copyright is not a "tacked on" term. It's law. "

            That comment in the book isn't the definition of copyright law. Copyright law permits reproduction of the book or portions thereof if it comes within fair use and other provisions, so that clause goes beyond copyright to restrict the rights further.

            "Like I said, anyone not expressly authorized to copy is not authorized to copy."
            See above. You can copy portions (even the whole thing in some cases) if its fair use. Under that circumstance you don't need permis

    • Whereas the book publishers can simply tell Google which books they don't want scanned and so they've given implicit permission by refusing to list those books.

      Whereas the people can simply tell advertisers which phone numbers they don't want called and so they've given implicit permission by refusing to list those numbers.

      Yes? No?

      Personally, I fucking hate things that are Opt-Out. As one post pointed out, books already have their own version of robots.txt [slashdot.org]

      Don't forget that "Fair Use" is an affirmative defen

      • "As one post pointed out, books already have their own version of robots.txt"

        See my comment above:
        http://yro.slashdot.org/comments.pl?sid=178558&thr eshold=0&commentsort=0&mode=thread&pid=14804026#14 804075 [slashdot.org]

        "Just because you like Google, doesn't mean you should invent rationalizations for their behavior."

        See my comment above, I think Google are *wrong* in the Perfect 10 case and *right* in the Google Book Search case and that the two situations are not comparable for the reasons I outlined in
        • Yet that clause was put in those books prior to Google Book search existing, so it couldn't have been written with Google in mind.

          So Google can also check the timestamp of every robots.txt file it downloads and ignore any dated prior to 1998? Can I ask the local Wal-Mart when they posted the No Shoplifting signs in their dressing rooms, and ignore any that were there before I was?

          It fails the 'is this contract fair' test too, since the courts have repeatedly rules that you can reproduce portions of the boo
          • "So Google can also check the timestamp of every robots.txt file it downloads and ignore any dated prior to 1998? Can I ask the local Wal-Mart when they posted the No Shoplifting signs in their dressing rooms, and ignore any that were there before I was?"

            Under fair use, they don't need to ask permission, if the copyright holder disagrees they can sue and a judge decides if it is or isn't.

            Google offer an additional PRE-opt out. This is BEYOND what they have to do if their indexing is fair use.
            A request unde
    • An automated program can't tell what should be on a site and what shouldn't. Google is not at fault here; if a third party copies the files, that third party is the one who should be on the receiving end of a takedown notice or a lawsuit. THAT is what the DMCA can be fairly used for, not for strangling the rights of people who just want to use things they paid for.

      Google just has deeper pockets, so they were hit instead due to the "I want free money!" attitude so prevalent in the US today.

      I'm waiting for Go
      • "THAT is what the DMCA can be fairly used for,"

        Read this:
        http://www.chillingeffects.org/dmca512/notice.cgi? NoticeID=1328 [chillingeffects.org]

        From what I read about the case Perfect 10 served a DMCA request, Google ignored it, Perfect 10 sued, Google lost.

        Is this not what happened?
        • Oh, no, you misread my comment, or I wasn't clear, or both.

          It's the people who stole the images that need to be served with the complaints. Not the search engine that is merely recording what it finds as long as it's been given permission (Google does obey robots.txt).

          The search engine isn't playing a part in this beyond doing what it's designed to do. It's like claiming, if I worked as a checkout clerk at a grocery store, for allowing someone to purchase some good that wasn't authorized for sale at that st
          • "The search engine isn't playing a part in this beyond doing what it's designed to do"

            I think Google were in the wrong with Perfect 10, because the search engines right to index the work is covered by fair use, fair use includes such factors as benefit/loss to the copyright holder.

            When Google indexes a site that has the copyright, there is a benefit to the copyright holder. When it indexes a site that is a pirate, there isn't, the pirate benefits instead and the copyright holder, so Google loses their fair
            • But, as I have said in other posts, the search engine doesn't know what's supposed to be there and what isn't. That's not its job. The copyright holder needs to complain to the infringer. The infringer (or their ISP) takes the images down. And they're no longer accessible and will disappear out of the index the next time the search engine stops by for a check. And those who were rightly at fault will be in trouble but those who have nothing to do with it won't be bothered.

              This is not Google's fault. I know

              • But, as I have said in other posts, the search engine doesn't know what's supposed to be there and what isn't. That's not its job.

                But they were specifically informed of these images, and chose not to remove them anyway.

                The copyright holder needs to complain to the infringer.

                Why must there only be one infringer? If Person B copies something from Person A without permission, and then Person C copies it from Person B, there are two copyright infringers (barring a defense such as fair use), not one.

                Th

                • But Google, because the site hosting the images did not declare via robots.txt that it was forbidden to enter, DID have permission to index the site in its database. The owner of a given site has to be the one to ask Google not to index; I can't tell them not to index your site if I for some reason don't like what you've got on it. The most I can do is ask you to take it down, or if you don't and I have the legal right to stop you, ask your ISP to take it down.

                  Another analogy is that it'd be like prosecutin

                  • But Google, because the site hosting the images did not declare via robots.txt that it was forbidden to enter, DID have permission to index the site in its database.

                    They had permission from some random criminal, not from the copyright holder.

                    The owner of a given site has to be the one to ask Google not to index; I can't tell them not to index your site if I for some reason don't like what you've got on it.

                    You can tell them not to copy and distribute my site if you own the copyright on my site!

                    Anoth

                    • You can tell them not to copy and distribute my site if you own the copyright on my site!

                      No, I can tell your ISP to pull your site under the law. THAT is the remedy that has been specifically made available to you in cases like this. It's called the DMCA -- surely, you have heard of it?

                      And no, you can't order Google to remove someone else's site from the index. From their documentation:

                      Note: If you believe your request is urgent and cannot wait until the next time Google crawls your site, use our automatic

                    • No, I can tell your ISP to pull your site under the law. THAT is the remedy that has been specifically made available to you in cases like this. It's called the DMCA -- surely, you have heard of it?

                      And surely you don't understand what it says. The DMCA provides protection from a copyright infringement lawsuit if your ISP takes down that site after receiving a takedown notice. It certainly doesn't provide protection from a copyright lawsuit for the person who intentionally violates copyright law in the

                    • And for the third time, I disagree with you because it was asked by the wrong people, who didn't go through the proper channels for taking offending material off the net. I think at this point we're going to have to agree to disagree, because I think you're wrong, you think I'm wrong, and neither of us shows any signs of budging.
    • Has anybody more information on this case?

      Of course Google infringed on Perfect 10's copyright by showing these images.

      So was it that :
      A) Perfect 10 complained to Google about it and Google just said : "fair use, so get lost" and Perfect 10 had to sue Google to enforce his copyright?
      or
      B) Perfect 10 saw these images and decided to sue Google because Google has money but the guys who really infringed his copyright (the sites which published to images) had none?

      In case A, Google is at fault for not removing co
  • By far most material Google indexes and shows previews of is copyrighted.

    You get text fragments of copyrighted content as part of textual searches.

    You get reduced-size images as part of image searches.

    If the former falls under fair use, and reduced images generally do as well, why wouldn't it this time?

  • Note to the authors... (Score:3, Insightful)

    by tkrotchko ( 124118 ) * on Sunday February 26, 2006 @12:53PM (#14804240) Homepage
    With apologies to Oscar Wilde, "The only thing worse than being indexed by Google is NOT being indexed by google".

    What google ought to do is *not* index these authors; these guys really are so goofy they don't understand what a boon this will be to them for people to get to their book, read a few sentences and then jump over to an online bookstore and buy it. Instead, they'll have to be content with a few sales here and there. Then they can go to their guild meetings and bitch about how the country is becoming illiterate.

    Its like they're so greedy for a nickel here that they can't see the 10 dollars that is coming tomorrow if they're just patient.
  • Are all authors this stupid, or just the ones they hire to be their spokesman? If he's straining for some court precedent that would help their case, there is little point in just trying to grab every case just because in involves Google.

    In the case of Perfect 10, Google was taking full size images and scaling them down to miniture size, which Perfect 10 argues was what they are doing by selling their images for use on mobile phones. First of all, Perfect 10's arguement is utter baloney. What is this sec

  • Intellectual Garbage (Score:2, Insightful)

    by xeer0 ( 42098 )
    The bottom line is that the United States is going to go down the tubes squabbling over "Intellectual Garbage" while other countries prosper because they are unencumbered by this foolishness and enjoy the benefits of more open information sharing.
    • It must be quite a liberating feeling living as you do, unencumbered by actual facts or knowledge.

      To those of us who live in the real world and know a bit about basic economics, we can show you unequivocally and without question, and beyond any reasonable doubt whatsoever, that history has shown us time and time and time and time and time again (so much so that you are basically arguing the intellectual property version of creationism while I'm duly reciting the basic tenets of evolution here) that countr

      • It must be quite a liberating feeling living as you do, unencumbered by actual facts or knowledge.

        You *do* realize that we're talking about *porn thumnails* here? Is society so fragile that it will crumble if someone displays a tiny preview of the porn on your site?

        And you don't think that the benefits of having a vast index of all the image content on the Web makes that tradeoff worthwhile? I'm amazed, I really am.

        To those of us who live in the real world and know a bit about basic economics, we can show
        • You *do* realize that we're talking about *porn thumnails* here? Is society so fragile that it will crumble if someone displays a tiny preview of the porn on your site?

          Sigh. No, we're talking about a general and important cornerstone principle of the economy. Stop trying to marginalize on the central issue being debated by focusing on the relative trivialiy of one particular piece of covered subject matter.

          And you don't think that the benefits of having a vast index of all the image content on the Web

  • So where are all the images? Type "Perfect 10" into Google Images and you're not exactly swamped with hits that look like free pictures from their photo library. Where are they finding them?

    And I wouldn't ask Google to remove the term "Perfect 10" from all searches because that term was in general use long before this magazine came along and tried to own it.

    Perfect 10 should be using the DMCA takedown provisions against web-sites that they feel violate their copyrights. Google is just too useful to t

  • Would Perfect 10 have known about the copyright violation had not Google indexed it?

    Google's indexing seems a double-edged sword: it doesn't just let prospective users find illegal material, it also lets those with an interest (copyright/patent/trademark holders, law enforcement) find it too. So you might consider it an impartial, disinterested* process. Maybe on those grounds alone, we should consider linking to illegal material qualitatively different from providing/hosting it.

    (* Though not necessar

  • Is that Google might just show the ends of books.

    Imagine Googling "Star Wars" and the results are:

    Leia is Lukes Sister

    Darth Vader is Lukes Father

    Lando turns them in

    Mitochoridians cause the force

    Snape kills Dumbledore

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