Does Google Image Search Violate Copyright Law?
posted by Daniel Solove
Perfect10, an adult industry website, has sued Google claiming that Google Image Search is violating its copyright. For those who haven’t tried it, Google Image Search is a terrific resource. One can search the web for images, which appear as thumbnails on the search results page. EFF, which has filed an amicus brief in the case, argues on its website:
Thumbnails created by Google Image Search allow users to identify information they are looking for online and then access that information—much like an electronic card catalog. As certain information about images can only be conveyed visually, there is no other feasible way to provide image search on the Internet than capturing images, transforming them into thumbnails, and then displaying them on a search results page for users.
October 14, 2005 at 10:25 am
Posted in: Google & Search Engines, Intellectual Property
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Responses (5)
Kaimi - October 14, 2005 at 11:48 am
I’m no copyright law expert, but isn’t there a real difference between the little 1 inch square images that google image search returns, and the full images on a web site. Perhaps I’m being naive, but I find it hard to believe that someone is using google 1-inch thumbnails to satisfy the same purposes as a full image-based website.
Derek Conrad - October 14, 2005 at 12:11 pm
This case boggles me. Google has a clear win here, just by pointing out Kelly v Arriba Soft, which is almost directly on point.
Transformative + tiny market impact + arguably amount and substantiality tip to Google, and courts tend to weight 1 and 4 much more heavily.
Eric Goldman - October 15, 2005 at 9:18 am
The Kelly v. Arriba precedent is fairly limited in its persuasive effect, so simply ciing to it is hardly dispositive. Moreover, there are more factualy allegations in the complaint that may be problematic, including various allegations that Google exercises significant editorial control over its database, that Google helps users illegally traffic in passwords, and that Google helps infringe Perfect 10’s trademarks and rights of publicity by, among other things, unilaterally recommending that advertisers purchase those keywords. This isn’t to say that Google will or even should lose, but the complaint is nuanced and doesn’t lend itself to making assumptions. Eric.
Derek Conrad - October 15, 2005 at 6:09 pm
I disagree, unless by “nuanced” you mean the complaint contains a lot of weak claims in the hope that some will stick.
The use of thumbnails is fairly obviously fair use — that part of the claim won’t stick. Kelly is not controlling, but it’s pretty persuasive.
For the grokster-style claims by Frackman, in that google is promoting infringment, it’s fairly obvious that there are a vast number of non-infringing uses of google and that Google has no duty to police infringers for Perfect 10 by monitoring password sites. Visa and Mastercard aren’t responsible for protecting Perfect 10, Google won’t be either.
pochael - October 17, 2005 at 11:29 am
That is not what I understand the case to be. Google received DMCA notices to remove infringing pictures and did not do it. At the same time, google gets ad revenues from this type of misuse. Also, everyone compares google to a library, card catalog etc. Well, public and private libraries pay for books which in turn give them a right to use the copyright, for libraries that are public, they have to be non profit to receive copyright use. Google is for profit.
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