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Partial Victory for Perfect 10?

ScuttleMonkey posted more than 8 years ago | from the responsible-but-not-liable dept.

306

An anonymous reader writes "Internet News is reporting that a recent statement made by district court judge A. Howard Matz has declared a partial victory for Perfect 10 in their efforts to stop search engines from displaying their photos in an image search. From the article: 'Perfect 10 is likely to succeed in proving that Google directly infringes its copyright by creating and displaying thumbnail copies of its photographs. Perfect 10's copyright infringement case may take years to wend its way through the courts. But a victory could hamstring image search, along with video and audio search services.'"

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306 comments

Second Post! YEAH! (-1, Offtopic)

Anonymous Coward | more than 8 years ago | (#14774356)

Second Post! YEAH!

You failzor! (2, Funny)

Anonymous Coward | more than 8 years ago | (#14774527)

You actually got FP, so you suxxor.

Re:Second Post! YEAH! (0)

Anonymous Coward | more than 8 years ago | (#14774726)

that Google directly infringes its copyright by creating and displaying thumbnail copies of its photographs

Does this mean the law also applies to the very Google, best friend of FOSS-monkeys and pedophiles alike?

Question (5, Insightful)

HeavensBlade23 (946140) | more than 8 years ago | (#14774362)

How is an image search substantially different than a text search? Wouldn't making a thumbnail with a link to the original image fall under fair use, the same as google cache or even the partial webpage text displayed in a regular google query?

Re:Question (4, Interesting)

Belseth (835595) | more than 8 years ago | (#14774407)

How is an image search substantially different than a text search? Wouldn't making a thumbnail with a link to the original image fall under fair use, the same as google cache or even the partial webpage text displayed in a regular google query?

They are displaying the entire copyrighted work not an excerpt. The owner has legal control of where and how the work is displayed. They would have to recieve permission to use the work in any form. A thumbnail is still the image itself just greatly reduced. They might get away with showing a modified alias of the work where it's stylized in some way but that's the only way around the issue I can think of.

Re:Question (1)

HeavensBlade23 (946140) | more than 8 years ago | (#14774434)

Google cache is also displaying the entire copyrighted work in many cases.

Re:Question (2, Informative)

ceejayoz (567949) | more than 8 years ago | (#14774435)

Google Cache is legal [eff.org] - there's not much difference here. Seems pretty open-and-shut precedent in favor of Google.

Re:Question (4, Informative)

TubeSteak (669689) | more than 8 years ago | (#14774579)

If you RT entire FA, you would have discovered that the Perfect 10 is suing over thumbnail images.

Why?

Because those thumbnails are similar in quality to content that Perfect 10 sells for mobile phones.

In other words, the thumbnail is copyrighted work. This is why you (the parent post) are wrong, and the GP is correct.

Re:Question (0)

Anonymous Coward | more than 8 years ago | (#14774762)

The thumbnail is a copyrighted work on a publicly accessible website. If other websites are putting up Perfect 10's images then their argument should be with them.

Re:Question (5, Insightful)

ScrappyLaptop (733753) | more than 8 years ago | (#14774488)

Interesting, but I would consider a greatly reduced resolution picture to be the equivelent of an excerpt. Think of it this way; you are getting only every 100th pel, or 1/100th of the original work. That also fits the definition of an excerpt, don't you think? A lower resolution thumbnail taken in this respect IS a stylized, modified alias of the original work.

Re:Question (1)

chrisxkelley (879631) | more than 8 years ago | (#14774709)

well in this case, we just have to make sure google only indexes one picture for every thousand words :)

robots.txt? (2, Insightful)

Evro (18923) | more than 8 years ago | (#14774363)

Couldn't they just tell Googlebot not to index their images via robots.txt?

http://www.google.com/webmasters/bot.html#robotsin fo [google.com]

Case closed? Oh, sorry, I forgot Google has lots of money.

Re:robots.txt? (1)

Geekenstein (199041) | more than 8 years ago | (#14774385)

Kind of like saying "If I don't lock my door, it's ok to steal from me."

Sorry, that doesn't fly in real life.

Re:robots.txt? (2, Insightful)

Anonymous Coward | more than 8 years ago | (#14774475)

More like, "If I don't close my blinds, it's ok to look at me naked in my bedroom."
In which case, yes it is.

Re:robots.txt? (1)

dgatwood (11270) | more than 8 years ago | (#14774506)

More like "If I put something out on a public table, it's okay to take it."

Besides, Google isn't "taking it" in any way that your web browser doesn't "take it" when you view a page. They aren't redistributing the original image. They are providing a reference to the original image. They are providing a thumbnail of the original image. The first is providing an index, which falls clearly within fair use bounds. The second is equivalent to quoting a small sample for research purposes, which also almost certainly falls within fair use bounds.

To "Perfect 10", good luck. You're gonna need it.

Re:robots.txt? (1)

TekPolitik (147802) | more than 8 years ago | (#14774545)

More like "If I put something out on a public table, it's okay to take it."

Po-tae-to - Po-tah-to. If you take it, it's still larceny.

Re:robots.txt? (0)

Anonymous Coward | more than 8 years ago | (#14774641)

How about "Those of you who haev brains and/or a life won't read this quote at all because of all the previous ones?"

Re:robots.txt? (1)

SlimFastForYou (578183) | more than 8 years ago | (#14774628)

More like standing around giving pictures away to anyone who asks for a copy.

And then abruptly dragging someone they willfully gave a picture to through the legal system.

Re:robots.txt? (1)

dbIII (701233) | more than 8 years ago | (#14774706)

Kind of like saying "If I don't lock my door, it's ok to steal from me."
No - more like saying "if put signs on the street you aren't allowed to look at them without paying".

Re:robots.txt? (2, Insightful)

Pinefresh (866806) | more than 8 years ago | (#14774396)

so you have to opt out of having your copyrights being violated?

Re:robots.txt? (2, Insightful)

Penguinoflight (517245) | more than 8 years ago | (#14774465)

The grand assumption is that most will want their website indexed. Of course if someone is determined enough to keep their site from being indexed/copied by google, they should have used the robots file. Copyrights are always something you have to protect yourself; Perfect 10 skipped quite a few steps involved in protecting their copyright and went straight to suing google.

This case is clearly a gold digging scheme, so here's hoping "Perfect 10" loses.

Google should cave in. (1)

geminidomino (614729) | more than 8 years ago | (#14774526)

Of course, if a small typo were to enter into the exceptions database, say instead of http://www.perfect10.com/*.jpg [perfect10.com] , they were to block http://www.perfect10.com/* [perfect10.com] , well, hey... at least their images are safe!

Re:robots.txt? (5, Informative)

Anonymous Coward | more than 8 years ago | (#14774634)

As usual, horray for slashdot: where you can get modded insightful commenting on an article you clearly DID NOT READ.

They are *not* suing google for indexing THEIR web site. They are suing google for indexing OTHER PEOPLE'S websites. Websites that are infringing on their copyright.

I think their legal theory is BS, and yeah it sounds pretty gold-digging to me too. However all you people screaming "duh, robots.txt, LOL!!1!" are missing the point too. You can't put a robots.txt file on a domain you do not control.

Re:robots.txt? (1)

ceoyoyo (59147) | more than 8 years ago | (#14774534)

I would suggest that displaying a thumbnail as part of a search is not having your copyright violated. Google search displays short quotes from websites as well. Is that copyright violation? Nope. Short quotes are allowed. What's the equivalent of a short quote for images? A thumbnail. Google thumbnails are REALLY small too.

Re:robots.txt? (1)

xenocide2 (231786) | more than 8 years ago | (#14774770)

So you made your data publicly available with the expectation that nobody would want to look at it?

Re:robots.txt? (2, Insightful)

ZachPruckowski (918562) | more than 8 years ago | (#14774413)

Maybe something like this should be opt-in? Like if there is no robots.txt file, it should default to not indexing? Personally, I feel like 99% of the web desperately wants to be on Google, hence it should be opt-out.

Re:robots.txt? (2, Insightful)

horatio (127595) | more than 8 years ago | (#14774702)

TFA kind of obscures the fact a little that P10 isn't complaining so much about Google indexing their site per-se, but rather sites of people who have ripped off P10's images and reposted them elsewhere.

Like if there is no robots.txt file, it should default to not indexing?

So we should change the entire ruleset that governs robots.txt because one company has their proverbial panties in a wad about their images being ripped off by their own subscribers and then indexed by spiders? Any RFCs you'd like to throw out while you're at it? Maybe we should abandon TCP because that is the mechanism used to transport these images illegally across the internet.

There may be an option to add a no-index header to a jpeg file, maybe in EXIF metadata area which perhaps the search engine could honor. (Or does EXIF already have a copyright flag?) This extends an existing standard without breaking any old ones. Problem is it would be trivial to strip the bit from the file before re-posting.

Google and A9 aren't the only engines which index images. The spiders don't really (and shouldn't, save honoring robots.txt) care what the content is. They just index it so it can be found. Oddly enough, the search engines are what allow most people to find sites like P10. Talk about biting the hand that feeds you. (Okay, search engines and spam.)

Google has deep pockets, so they're a target instead of the people who are actually stealing the images in the first place. I don't like the idea of stuff being ripped off. I like even less the idea of turning a well-established standard on its head. Maybe instead of attacking Google and A9 they should leverage Google, as someone else has already mentioned, to find the infringers and go after them. The pirates would just change their robots file to allow their content to be indexed anyways.

I feel like 99% of the web desperately wants to be on Google, hence it should be opt-out.

No clue what the first part of that means, hence flying monkeys are desperately wanting to come out of my butt (?)

Re:robots.txt? (1)

PhrostyMcByte (589271) | more than 8 years ago | (#14774713)

I'd love to see Google win this, but P10 does have a point (even if they are only making it because they want a piece of Google's pie) - should store owners have to place signs saying "no stealing" at their door, or expect to give theives free rein on their stuff?

I do believe Google has good intentions, and they don't even display ads on their image search. And maybe >99% of the web does want it "opt-out", but Google should not be above the law.

Re:robots.txt? (4, Insightful)

Embedded2004 (789698) | more than 8 years ago | (#14774418)

The problem in this case is that people rip their images and post them on other sites. Which google then spiders, so their unable to disable the spidering of their property.

To me at least, it looks like they should be going after the people that steal their images, not google.

Re:robots.txt? (3, Insightful)

RodgerDodger (575834) | more than 8 years ago | (#14774712)

The real question is: How is Google meant to identify that the images come from Perfect 10? Google is no more capable of recognising the copyright theft than it is of recognising someone plagarising from a NYT article (and violating copyright that way).

OTH: If Google had even better image search, then the copyright owners could use Google to help track down the people who infringed by copying (not stealing) the images in the first place.

Re:robots.txt? (5, Informative)

larry bagina (561269) | more than 8 years ago | (#14774420)

yes, but that's not all....

Second, most of the results for searches on his company name or the names of the models he has under contract lead not to Perfect 10 sites, but to sites that have pirated his images.

Finally, the suit claimed that Google should be held liable for helping searchers find sites that display stolen Perfect 10 images because, in many cases, those sites also show Google AdSense contextual ads. "Google not only copies and displays Perfect 10 images itself," the request for the injunction read, "but also links them to Infringing Sites with which Google has partnered and from which Google receives revenue through its AdSense advertising program."

They can ban google via robots, but google still displays their (pirated) images from other sites. Google has lots of money ... but they also make money (adsense) from those copyrighted images, which means fair use doesn't apply (per the judge).

In a fair world, they should be thanking google for making it so easy to track down people who are improperly distributing on their copyrighted images.

Re:robots.txt? (4, Insightful)

DrEldarion (114072) | more than 8 years ago | (#14774608)

They don't make money directly off image search - there aren't any adwords displayed on it.

If you're talking about adwords on the sites that stole P10's images, then Google isn't the one infringing on the copyright, so they shouldn't be held liable.

Re:robots.txt? (1)

KazenoKoe (923495) | more than 8 years ago | (#14774618)

making money from copyrighted material does not automatically rule out fair use.

Re:robots.txt? (1)

MikeFM (12491) | more than 8 years ago | (#14774679)

It'd be easy enough to make images searchable by an md5 hash of the file. Then companies could police pirates using the search engine themselves. If they fail to do so then it'd be evidence that they don't mind the content being pirated.

As someone that has subscribed off and on to Perfect 10 though they're not doing much to win my affection. I usually subscribe to them for a while when a pirated pic renews my interest in their content and then unsubscribe again when I get bored of them. Most 'adult' content is that way for me. Pirated or free images serve as advertising so long as they are smart enough to get their URL into the images. I don't like print porn because it's bulky and not user friendly (one handed use is difficult) and I don't like most porn sites because they make it difficult to browse, search, download, and view their content. Simply put, it's not a matter of paying for the content so much as getting a better user experience from pirates. I don't want to one at a time it through some crappy spammy bulky website. I'd rather download all the content to my PC and then view it in my choice of programs. If the website keeps generating new content or offers bonuses such as member sharing forums (discussion and posting of their own pics/vids) they'll keep my business and they don't need to resort to making it hard to download their content.

Just another example of a company using IP laws to make up for their own lack of a modern business model. Adapt or die.

Re:robots.txt? (1)

RodgerDodger (575834) | more than 8 years ago | (#14774715)

Even a very simple change to the image (like resizing it so it doesn't blow your bandwidth out, or removing the Perfect10 logo) would change the hash.

Re:robots.txt? (1)

wfberg (24378) | more than 8 years ago | (#14774754)

This is what the DMCA is for. Just send google a takedown notice, and the search results are gone. The DMCA (safe harbor) is also (together with fair use) what allows google to index the web in the first place, without too much fear for repercussions.

Re:robots.txt? (0)

Anonymous Coward | more than 8 years ago | (#14774443)

As I understand it, Perfect 10 uses robots.txt. Part of their complaint is that other sites rip them off and Google indexes those sites, the pictures on which also still belong to Perfect 10. Also, there is some issue with Google Mobile image search. Perfect 10 has a similar service. Finally, there's a concern that Google is getting advertising dollars related to the supposedly infringing pictures.

Re:robots.txt? (1)

larry bagina (561269) | more than 8 years ago | (#14774491)

Actually, I just checked... Nope [perfect10.com] . (Unless it's a different perfect10).

Re:robots.txt? (1)

drgonzo59 (747139) | more than 8 years ago | (#14774473)

Or how about just not making their images accessible without a password. A search engine just does the searching and reporting of what's out there. If people are stupid enough to put their copyrighted materials, images and other crap on the web, why are they surprised that Google picked it up and indexed -- that is what Google does. "Don't want your stuff indexed -- don't put it on the web without any kind of access authentication."

I might not like Google as much recently, in light of their position with China, but I hope they win this case. Every business out there hates Google, they came seemingly out of nowhere and went straight to the top, even as the huge tech bubble burst. So what do others do now? They are suing them of course -- the Great American Way! Some are suing that their site isn't high enough in the rankings, others that their site is too high and people can see too much of their crap.

Re:robots.txt? (1)

ceoyoyo (59147) | more than 8 years ago | (#14774528)

Exactly. This really seems like another lawsuit trying to get a piece of Google because they're big.

Google shows tiny little thumbnails of images... I have photos on my website that are for sail and I think it's great if Google indexes them and makes them easy to find. I'd have a problem if they made the full resolution originals available, but then I don't put those on the web. Google doesn't even make the reduced size pictures I DO publish available without visiting my web page.

I hope these guys don't win. Google's not only sticking to fair use, but it's fair use on these guy's behalf!

They might have a beef with websites that are ripping them off, but that's not Google.

Re:robots.txt? (1)

TubeSteak (669689) | more than 8 years ago | (#14774597)

My cellphone's display is 1.5" x 1.25"
Google Image thumbnails are larger than that.

Perfect 10 is suing because the Google Image thumbnails are similar in size and quality to copyrighted works that Perfect 10 sells. Specifically, porn for your cellphone.

So it doesn't really matter if Google is indexing content off the Perfect 10 website, or off other sites that utilize Google AdSense. This is the Judge's opinion, not mine.

Re:robots.txt? (1, Interesting)

ceoyoyo (59147) | more than 8 years ago | (#14774638)

So Perfect 10 makes these porn for your cell phone pictures available publicly on their website? So why exactly would I pay for them?

Or does Google's spider pay for a membership and then enter it's password so it can enter the member's area? That would be wrong.

As for the adsense thing, if a web page rips off your image, you sue them, not Google. If I steal your image and put it in my magazine you can't sue all the companies who paid me to put their ad in my magazine.

Re:robots.txt? (1)

rm69990 (885744) | more than 8 years ago | (#14774677)

Could you please read the article? The scaled down versions on Google Images are the same quality and size as Perfect 10's cell phone images.

Re:robots.txt? (1)

ceoyoyo (59147) | more than 8 years ago | (#14774722)

Could you read the post you replied to? Here, I'll quote it for you so it get's e-mailed:

So Perfect 10 makes these porn for your cell phone pictures available publicly on their website? So why exactly would I pay for them?

Or does Google's spider pay for a membership and then enter it's password so it can enter the member's area? That would be wrong.

As for the adsense thing, if a web page rips off your image, you sue them, not Google. If I steal your image and put it in my magazine you can't sue all the companies who paid me to put their ad in my magazine.


So... regardless of scale, Google only indexes the publicly available images. If you put up an image publicly on your web site, you cannot seriously claim you intend to sell that image, at that resolution. If Google were going hunting in their password protected archives, that would be bad, but they're not.

I do admit, I wrote a DIFFERENT post (NOT the one you just replied to) that made the mistake of assuming they were talking about larger images. If you'd like to reply to that post and lambaste me for not reading the article, please do.

Re:robots.txt? (1)

rm69990 (885744) | more than 8 years ago | (#14774748)

OK, let me explain this more clearly for you. People pay for these images and then put them up on their website. Google Images downloads these full-size images, and then scales them down to the same size as the cell phone images for display on Google Images.

Perfect10 is not making these images publically available on their website. Other people are paying for them and then making these images publically available on their websites. Google Images is then indexing them from the third party websites.

Do you see what I mean now?

Re:robots.txt? (1)

ScrappyLaptop (733753) | more than 8 years ago | (#14774647)

"My cellphone's display is 1.5" x 1.25"

...now those are pictures only a philatelist could, um, "love".

speaking of passwords... (1)

johnny cashed (590023) | more than 8 years ago | (#14774657)

Funny story. Years ago, I paid for the "short time trial membership" (I don't remember, 2 days? 3 days?, whatever it was) that cost like $3 for the Perfect 10 website. This would only allow you to access a certain portion of the website. But who ever did the website allowed directory views such that if you knew what you were doing, you could access all the photos on the website (and by "knew what you were doing" I mean a really trivial use of backspace in the URL line, definately could not be considered "hacking"). So I went through and got all the images at the time, all for the cost of a "trial" membership (and much less that the cost of a single printed copy of Perfect 10). So either Perfect 10 wasn't very web savvy at the time, or the guys who did run the website knew what they were doing and didn't care. I'm suprised Perfect 10 is still around. I've purchased exactly 1 copy of the magazine. While the women are pretty enough, the rest of the magazine wasn't very interesting. Boring. At least it wasn't full of crappy adverts for phone sex lines. Here is an interesting tidbit on Perfect 10 and lawsuits: http://www.overlawyered.com/archives/001748.html [overlawyered.com]

Playboy, at least, could be considered an interesting magazine in itself even without the nude pictures (though not nearly as popular). Then again, I haven't read Playboy in years.

Re:robots.txt? (0)

Anonymous Coward | more than 8 years ago | (#14774480)

That only applies to part of their case. Their complaint basically seems to be about images appearing on OTHER people's websites:

Basically they're saying
* Various people violate the copyright on our pr0n and put it on their own websites
* Since those infringing websites don't restrict via robots.txt, google dutifully indexes the infringing site
* Since google has lots of money, they're supposedly to blame for all this

The only thing talking about their own site is in the fact that they're selling thumbnails (for mobile phone use) in order to prove that the thumbnail versions have economic value. So that makes their argument "look, google is giving away our valuable thing for free. Sure, they got it from a 3rd party, but they're still liable"

Personally I think this lawsuit is a bunch of BS. Hopefully it'll blow over soon.

Note: I'm not a lawyer and have only paid a bit of attention to this. However, unlike you, I RTFA'ed.

BS (0)

Anonymous Coward | more than 8 years ago | (#14774370)

This is crap(FP)

So let me see. (1, Informative)

Geekenstein (199041) | more than 8 years ago | (#14774375)

An image search takes a copyrighted photograph, manipulates it, and then stores it on it's server for display to a user of it's site.

Sorry to say, seems like a pretty cut and dry case to me.

Re:So let me see. (1)

AKAImBatman (238306) | more than 8 years ago | (#14774457)

See Fair Use [wikipedia.org] doctrine for more info on why this isn't so cut and dry.

Re:So let me see. (2, Informative)

larry bagina (561269) | more than 8 years ago | (#14774521)

From the wiki:

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

...

The subfactor mentioned in the legislation above, "whether such use is of a commercial nature or is for nonprofit educational purposes," has recently been deemphasized in some Circuits "since many, if not most, secondary uses seek at least some measure of commercial gain from their use" (American Geophysical Union, 60 F.3d at 921). More important is whether the use fulfills any of the "preamble purposes" also mentioned in the legislation above, as these have been interpreted as paradigmatically "transformative". Although Judge Pierre Leval has distinguished the first factor as "the soul of fair use," it alone is not determinative. For example, not every educational usage is fair (see the 1914 case, Macmillan Co. v. King, although this case has only limited application since it was decided many years before the modern fair use provision became a part of the legislation).

From TFA:

However, the judge agreed that the display of thumbnails did infringe. And, because the search engines show ads against search results, he found the use of thumbnails to be commercial in nature. One of the tenets of fair use is that the usage not be commercial.

Re:So let me see. (0)

Anonymous Coward | more than 8 years ago | (#14774467)

I guess I don't see how they are being "stolen from".

The images remain on their site, and my search for "rock hard nipples" takes me to their site to possibly spend money looking at more rock hard nipples.

Would they prefer to not be found?

of course...I don't see why google can't just remove their images since they requested it. seems kinda dickish on both of their parts.

Re:So let me see. (1)

Concerned Onlooker (473481) | more than 8 years ago | (#14774688)

If you're really into rock hard nipples check this site [ihistory101.net] out.

Re:So let me see. (1)

MarkChovain (952233) | more than 8 years ago | (#14774505)

It's not all that cut and dry. If I got a bit since I went through. Typical exercise involves 6-8 guys in a combat situation I would have wrote it.

I don't understand why the Arriba Soft precedent [imaging-resource.com] didn't make this one cut and dry in Google's favour...

Oh, honestly... (0, Redundant)

ceejayoz (567949) | more than 8 years ago | (#14774378)

http://images.google.com/webmasters/remove.html [google.com]

To remove all the images on your site from our index, place the following robots.txt file in your server root:

User-agent: Googlebot-Image
Disallow: /

Re:Oh, honestly... (1)

blue_adept (40915) | more than 8 years ago | (#14774395)

To retrieve all the items I stole from your house last night, please place a sticky note on your front door saying "star bright, star light, steal from someone else tonight!".

Honestly, if you're not even willing to do that, stop complaining when I steal from you!

Re:Oh, honestly... (1)

Beolach (518512) | more than 8 years ago | (#14774507)

That's not a good analogy. If you tell me, "Hey, come to a party at my house," and I come, and there's food on the table, and I eat some, and you say "I never said you could eat that!" it'd be closer. By inviting me to your party and having the food out on the table, you imply that it's OK for me to eat it. By making their content publicly available on the internet, Perfect 10 implies that it's OK for search engines to cache that content. If as I come in the door to your party, you tell me "Hey don't eat the food on the table," then I won't - and if as the Googlebot catalogues Perfect 10's website, it sees in robots.txt that it's not supposed to cache the images, then it won't.

Re:Oh, honestly... (1)

santaliqueur (893476) | more than 8 years ago | (#14774573)

you are correct, but don't feed the trolls.

Re:Oh, honestly... (0)

Anonymous Coward | more than 8 years ago | (#14774399)

If you don't want me to shoot you in the face, please carry a sign that reads "Please don't shoot me in the face".

-- Dick Cheney

Devil's Advocate (1, Insightful)

Geekenstein (199041) | more than 8 years ago | (#14774404)

So essentially, you're saying the onus is on copyright holder to tell someone not to steal their product?

Last time I checked, the law didn't work like that.

Re:Devil's Advocate (4, Informative)

ceejayoz (567949) | more than 8 years ago | (#14774419)

http://www.eff.org/deeplinks/archives/004344.php [eff.org]

The court granted summary judgment in favor of Google on four independent bases:

Serving a webpage from the Google Cache does not constitute direct infringement, because it results from automated, non-volitional activity by Google servers (Field did not allege infringement on the basis of the making of the initial copy by the Googlebot);

Field's conduct (failure to set a "no archive" metatag; posting "allow all" robot.txt header) indicated that he impliedly licensed search engines to archive his web page;

The Google Cache is a fair use; and

The Google Cache qualifies for the DMCA's 512(b) caching "safe harbor" for online service providers.


All of those would seem to equally apply to Google Images' thumbnails cache.

Re: Devil's Advocate (1)

Black Parrot (19622) | more than 8 years ago | (#14774439)

> So essentially, you're saying the onus is on copyright holder to tell someone not to steal their product?

No, merely to identify it as controlled content.

i see you used the verb "steal" (1)

circletimessquare (444983) | more than 8 years ago | (#14774483)

i'd like to point out to you that the verb "steal" the noun "theft" when applied to electronic media doesn't make any sense, really

being as its just bits, effortlessly copied

not that you aren't alone in your delusions, but the legal world is only beginning to wake up to the nonsense of laws written in the days of the printing press being applied to the internet

it's kind of absurd

Re:i see you used the verb "steal" (1)

ceoyoyo (59147) | more than 8 years ago | (#14774617)

Not to mention that copyright holders do not own the work (thus it cannot be stolen from them). They have been granted the right to control how the work is copied. They do not own the work.

Re:Devil's Advocate (1)

xigxag (167441) | more than 8 years ago | (#14774513)

The "law" may not work like that, but the Internet works like that. Pretty much all of the content you access on the web is somebody else's content. What gives you the right to go to their web page? To cache their words and graphics on your browser? Their tacit assent, that's what. Now if they suddenly want to say, "You're not allowed to cache my stuff if you're a search engine, or if you are running IE, or if you are from Slashdotistan" that's fine. But they ought to indicate that in advance, not just after the fact decide you should be sued. On the other hand, they could simply not put their stuff on the Internet. Problem solved.

Re:Devil's Advocate (1)

AlterTick (665659) | more than 8 years ago | (#14774520)

So essentially, you're saying the onus is on copyright holder to tell someone not to steal their product? Last time I checked, the law didn't work like that.

Last I checked copyright law had nothing to do with theft.

Re:Devil's Advocate (1)

RexRhino (769423) | more than 8 years ago | (#14774668)

Well, lets say you put your pictures up on a billboard in times square, then tried to sue anyone who published a picture of time square.

The web is PUBLIC. When you put something on the internet, you understand that people are going to use it for things like search engines.

If you don't want them on the web, password protect the pictures... or use a robots.txt file... or whatever.

Re:Devil's Advocate (1)

raoul666 (870362) | more than 8 years ago | (#14774701)

Regarding this, do you hold copyright on a work if you don't claim it? I mean, if you don't have a little "Copyright 2006 Raoul666" at the bottom of, say, a web page you write, can you sue someone for infringement if they stumble on it and put it somewhere? I'm genuinely curious.

I'd also argue that google is not stealing their product, or devalueing it in any way. To get the full size image, you must get it from the source. Clicking on the picture leads you to the page it was found. All you get from google is a small pic that gives you the general idea what you're looking at, not incredible detail. I think it's reasonably analagous to displaying a clip from a movie or a sentance from a book, which is generally allowed.

Re:Oh, honestly... (1)

imemyself (757318) | more than 8 years ago | (#14774518)

If its this huge of an issue for them, then they should atleast be willing to take a trivial amount of time to prevent it from happening to them. It's kind of hard for me to have sympathy for someone who takes absolutely *no* precautions at all.

Re:Oh, honestly... (1)

terbo (307578) | more than 8 years ago | (#14774652)

Really. I wonder if they will go after Yahoo next. Then Alltheweb. Then ... ditto. Damn, it would suck if ditto got sued.

So let them turn away the search 'bots (1)

crovira (10242) | more than 8 years ago | (#14774386)

We'll never hear from (or of) them again.

Never has victory left such a taste of ashes in your mouth.

Just start hotlinking. (4, Funny)

Spazntwich (208070) | more than 8 years ago | (#14774393)

Google could just start hotlinking the pics directly from their site, then resizing them to thumnails in the search.

That wouldn't be copyright infringement, right? Just yanking publicly hosted photographs from their rightful and providing owner.

This could spell troublle for GooglePrint as well (0, Offtopic)

Anonymous Coward | more than 8 years ago | (#14774416)

...not that it's not already in trouble.

Thumbnails (2, Insightful)

Quixote (154172) | more than 8 years ago | (#14774451)

A thumbnail (which Google Image Search displays) is just a downsampled version of the original image.
If it is OK for Google to distribute these, why is it illegal for a person to distribute downsampled versions of WAVe files (aka MP3s)?

Re:Thumbnails (1)

DeafByBeheading (881815) | more than 8 years ago | (#14774531)

If the typical MP3 were downsampled to 8khz/8 bits, I don't think there'd be as much of an issue...

Re:Thumbnails (1)

DeafByBeheading (881815) | more than 8 years ago | (#14774605)

Although, if we're talking about this in light of thumbnails being sold on cell phones, you (grandparent) have a better case. I guess craptastically sampled-down MP3s are being sold as ringtones...

Re:Thumbnails (1)

ceoyoyo (59147) | more than 8 years ago | (#14774666)

Fair use requires that the copying doesn't significantly affect the commercial viability of the original. Since someone discovered that there are suckers who will actually pay for barely recognizable downsampled versions of songs you can't claim fair use anymore. Apparently people are dumb enough to buy thumbnail porn images too, so they're out. Good thing the consumers haven't been convinced to buy short excerpts from written works yet, so we can still quote things.

Re:Thumbnails (3, Insightful)

Mr2001 (90979) | more than 8 years ago | (#14774581)

If it is OK for Google to distribute [downsampled versions of original images], why is it illegal for a person to distribute downsampled versions of WAVe files (aka MP3s)?

They aren't analogous. An MP3 file is missing much of the information that's in the original uncompressed audio file, but it's still functionally equivalent to the original; you can listen to it, burn it to a CD, mix it with other songs, etc. and in nearly all cases the differences between the MP3 and the original will be imperceptible. The information that's missing is information that your brain can't detect anyway (if the bitrate is reasonable and your encoder does a good job).

A thumbnail image is also missing much of the information from the original, but it's not functionally equivalent. The information that's missing is information that matters. You can't see nearly as much detail in a 128x102 thumbnail as you can in the 1280x1024 original, which severely limits the usefulness of the thumbnail.

Re:Thumbnails (1)

publius_jr (808330) | more than 8 years ago | (#14774611)

Yours is an important point. Also relevant is the fact that the original images are being publicly displayed, while the orignal songs are not. To make the analogy correct regarding my point, we would need to imagine either Google scanning in images only available in a magazine or a book or the music distributors posting full WAV files for free on their websites.

Why does Google bother with these people... (0, Redundant)

HoofArted (611932) | more than 8 years ago | (#14774459)

I cannot understand why Google bothers to argue the case with people like this. So you don't want your site images indexed, thats fine, Google should remove ALL references to your site from their index. When you traffic has dropped to the point of your site's death, come back and talk!


Come on Google, you have better things to worry about.

Re:Why does Google bother with these people... (1)

babbling (952366) | more than 8 years ago | (#14774566)

It is rather nice of them, isn't it? If I were Google, I reckon I'd drop them and refuse to re-list them.

Re:Why does Google bother with these people... (1)

Quixote (154172) | more than 8 years ago | (#14774714)

The question is not that Google indexed their site; but that someone else stole their images, and Google indexed the thieves' sites and actively sends traffic to the thieves (not to mention, profits from the AdSense ads displayed at the pirates' sites).

This is not a case of a missing robots.txt file, but of Google actively (debatable...) helping thieves enrich themselves from their theft.

Here's an analogy. Suppose you operate a pawn shop. Someone brings in a stereo to sell. It is your responsibility to make sure it's not stolen. Similarly, it is Google's responsibility (technically it's a nightmare, I agree) to make sure that they are not an accessory in copyright theft.

Re:Why does Google bother with these people... (1)

JPriest (547211) | more than 8 years ago | (#14774752)

It isn't perfect10 that is hosting the images google linked. A third party offers perfect10's images without permission, and google spiders them. Instead of going after fly by night violator perfect10 goes after Google. 5. Profit!

Looks like they already fixed it (0, Redundant)

ZachPruckowski (918562) | more than 8 years ago | (#14774464)

Google image searching site:www.perfect10.com/ brings up 0 images. Also, googling Perfect 10 brings up their site. So it appears they have blocked images and allowed text perfectly fine.

I was using Safari on OS X 10.4.4, with Safe Search off in Private Browsing mode if anyone gets different results somehow. Also checked with Firefox 1.5.0.1 Don't think that that makes a difference.

Did you read TFA? (4, Informative)

Saanvik (155780) | more than 8 years ago | (#14774728)

Read TFA. If Perfect 10 allowed Google to index their website there would be no case. The fact that your search returned no hits is favourable to Perfect 10.

Here's the case in a nutshell. Perfect 10's copyrighted images are being appropriated by others. Google indexes them and displays the thumbnails of them. Since Perfect 10 didn't give Google permission to display those images (as you noted in your post, they don't allow Google to index their images), when Google displays the thumbnails they are, under our current copyright laws, breaking the law.

This is similar to the case brought against Kinko's for creating coursepacks (see Basic Books, Inc. v. Kinko's Graphics Corporation [stanford.edu] . Kinko's made partial copies of course material and sold it to students. Kinko's believed these coursepacks were allowed by educational fair use rules. Kinko's, like Google in this case, didn't make complete copies. They only copied pieces of the material to help students get to the heart of the material. Google doesn't copy the entire copyrighted image, just enough to get the important part. The courts ruled against Kinko's, and the judge here said it's likely the courts will also rule against Google.

The biggest difference is, in the case against Kinko's, they were the ones taking direct action. The Kinko's case would apply more directly if someone had come to Kinko's and said, "Hey, we've got these great coursebooks for sale. If you point people our way, by giving away the first five pages with a link to us, we'll give you five cents for each copy we sell. You have to make copies of the first five pages yourself, though."

There are some other differences, too. Kinko's directly profited, whereas Google only indirectly profits (from advertising). The judge agreed that that part of the case is weak. But you don't have to make money to be infringing a copyright. That may help Google avoid paying as much in damages, but that's about all it means.

won't this be ubiquitous soon enough? (0, Offtopic)

Anonymous Coward | more than 8 years ago | (#14774530)

With any luck companies will get over themselves and realize that these sort of efforts a) annoy users b) clog the legal system with garbage c) attempt to put the internet back to the 90s, d) all of the above?

Think I'm gonna shoot for (d). Will it really matter if they win by the time it actually could happen? Remember that modern internet speeds are as much a result of cacheing as with actual bandwidth increases, stopping a valuable service like the google image search could double backfire if they have something to sell and need to get the word out.

It's been said and said again, but here I go: Most content producers have more to fear from obscurity than piracy.

Re:won't this be ubiquitous soon enough? (0)

Anonymous Coward | more than 8 years ago | (#14774689)

He probably doesn't care about publicity. Odds are it's just a sham business so he can bone some hot wannabe models.

Local cache (2, Interesting)

Lord Barrabas (70262) | more than 8 years ago | (#14774541)

By the same logic, am I 'thieving' when my browser caches or displays their images? The only difference is that google is passing the images on, and I'm not. IANAL, is that difference critical?

Also by the same logic, am I thieving when I access text on their site? Is google breaking copyright when it provides the first sentence or so from each result on a search?

RTF Search Notes! (2, Interesting)

Firehed (942385) | more than 8 years ago | (#14774542)

Image may be scaled down and subject to copyright.

Not "Thumbnail (C) 2006 Google, original (C) whoever actually owns it."

This is like being sued by a museum because you remember what a painting looks without having bought another ticket.

Eh? (0, Flamebait)

JordanL (886154) | more than 8 years ago | (#14774557)

But a victory could hamstring image search, along with video and audio search services.

Took a break from WoW to bring us this interesting news?

Re:Eh? (1)

Grech (106925) | more than 8 years ago | (#14774616)

That the WoW people may have borrowed the concept (disclosure: I don't play World of Warcraft, nor have I ever) doesn't make this use of the verb any less legitimate. People have been hamstringing each other from the moment Thug saw Og get bit in the back of the leg, and Thug figured out that maybe that's why Og couldn't walk so well anymore.

Perfect 10? (1)

Viperlin (747468) | more than 8 years ago | (#14774585)

But She Wears a 12.............

Hold on one sec (4, Insightful)

gargletheape (894880) | more than 8 years ago | (#14774596)

So basically these Charlies sue Google because other websites pirate their content, and some of these have (gasp!) Google ads. Wow.

And in any case, since when did it become necessary for a search engine to know that its searches link to content that violates someone's copyrights? I mean, even the RIAA wouldn't sue Google just because I can do searches like:

http://www.google.com/search?hl=en&lr=&c2coff=1&q= -inurl%3Ahtm+-inurl%3Ahtml+intitle%3A%22index+of%2 2+mp3+%22pearl+jam%22&btnG=Searchthis [google.com] .

(Not that they wouldn't like to try...)

All Google needs to do is to remove links to infringing sites when these are brought to its notice, and even there it is allowed to display the actual complaint with the list of bad URL's.

Watermark ? (2, Interesting)

Foddrick (13702) | more than 8 years ago | (#14774676)

What if google offered a watermarking app that allowed you to easily watermark an image that flagged it for do not index ? It would need to resist removal.

Only one problem (1)

TubeSteak (669689) | more than 8 years ago | (#14774743)

Watermarking images is a good idea, but not a secure one.

If Google provides a program, it will either be reverse-engineered or blackbox tested. Either way, an automated tool will pop up that can remove/distort the watermark.

Also, who wants to Google Brand their porn pics? If the watermark is non-visible, that just makes it easier to distort/remove.

Stupid Question? (1)

pookemon (909195) | more than 8 years ago | (#14774717)

I wonder if Google looked to see how Perfect 10's site got listed on Google? I mean if Perfect 10 registered their site then that should be seen as permission to create the thumbnails and list them in the image search.

It's pretty dumb really. While I can understand that Perfect 10 might be worried that they'll lose revenue because Google is creating thumbnails that could be downloaded by users onto their phones, Google will probably respond by removing Perfect 10 from it's database altogether. I think that'd probably have more of an effect than the thumbnails.

The really dumb thing is that my phone, as I expect most others do, came with software that would take the "large" image and turn it into an image that is perfectly scaled for display on it's screen. So the only real issue is if you can get the images through WAP and store them on your phone that way. Of course no one has enough money to download image searches on google through their phone - except maybe the ppl @ Google. Or maybe Bill Gates. And Steve Jobs. And John Carmack. And so on...

people missing the issue (2, Informative)

Anonymous Coward | more than 8 years ago | (#14774719)

people posting about robot files don't understand the issue. Perfect 10 does block Google's web crawler. it is other sites that have stolen Pefect 10 images (by paying for an online subscription and then pillaging the site's images), and then Google Image Search indexes those sites, creates thumbnails of the stolen images, links to them, and then generates literally hundreds of millions of dollars from AdSense revenue.

Re:people missing the issue (1)

BinaryOpty (736955) | more than 8 years ago | (#14774736)

So why aren't they going after the sites that stole them, thus enabling Google to index them?

Critical eliment.. (1)

peterfa (941523) | more than 8 years ago | (#14774744)

I know I'm probably beating the horse a bit but... Google Adsense is a service and not a partnership. Those that pirate Perfect 10 and have Adsense are not partners, they are costumers. Therefor, Perfect 10 is full of shit.
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