They know it when they see it...

February 27, 2006 5:47 AM

Last week US District Court Judge A. Howard Matz ruled against Google and found them to be in copyright violation for thumbnailing images from the soft core magazine/site Perfect10 (NSFW)... more inside
posted by cedar (36 comments total)

Refreshingly, the court seemed to thouroughly enjoy reviewing the evidence:

The P10 photographs consistently reflect professional, skillful, and sometimes tasteful artistry. That they are of scantily-clothed or nude women is of no consequence; such images have been popular subjects for artists since before the time of "Venus de Milo." [Full text | 47-page PDF]

Is this the first time Google has lost a case like this and, if upheld, wouldn't this set a precedent and lead to a flurry of nastygrams from commercial sites?
posted by cedar at 5:48 AM on February 27, 2006

Google hasn't exactly "lost another case", but it's not looking good for them.
posted by slater at 6:02 AM on February 27, 2006

Crap... wrong link. Here we go:

ustice Dept. rejects Google's concerns
posted by slater at 6:03 AM on February 27, 2006

"Justice", that should read...
Not enough caffeine...
posted by slater at 6:04 AM on February 27, 2006

slater writes "'Justice', that should read..."

Should, maybe, but hasn't, for the last five years.
posted by orthogonality at 6:08 AM on February 27, 2006

Should, maybe, but hasn't, for the last five years.

Zing!
posted by scaryblackdeath at 6:14 AM on February 27, 2006

In any kind of sane world, thumbnailing would be considered fair use. It's not like postage-stamp-sized images are useful for anything besides showing what the large image is.

How else can Google tell people that your images exist, and where to find them? Any why is it okay for them to cache your website (recent ruling in their favor), but not okay for them to cache thumbnails?

This is a Crazy American Lawsuit, and shame on the judge. This is just a preliminary injunction, not a final ruling, but it's still bad.
posted by Malor at 6:14 AM on February 27, 2006

That story's a little light on the details.
posted by raedyn at 6:16 AM on February 27, 2006

Thanks for the photos.
posted by ParisParamus at 6:19 AM on February 27, 2006

But why would you want to prevent Google from indexing and displaying your images? I see plenty of images on Google Image that redirect to the main page of the site in question when clicked. My own technical expertise is close to nill, but it would seem to be a fairly trivial technology fix on the site side that would preserve the benefits of Google indexing.
posted by OmieWise at 6:57 AM on February 27, 2006

It's not like postage-stamp-sized images are useful for anything besides showing what the large image is.

Or cell phone wallpapers ... which was their argument.
posted by jefgodesky at 7:20 AM on February 27, 2006

So any software capable of resizing an image into something which might possibly work on a mobile phone is now potentially illegal?
posted by public at 7:34 AM on February 27, 2006

Here is the preliminary injunction [pdf] issued by the judge against Google. Compare his reasoning to that of the earlier Ninth Circuit decision in Kelly v. Arriba Soft [pdf] allowing the display of thumbnails.
posted by monju_bosatsu at 7:36 AM on February 27, 2006

I've seen some results of plain google.ca web searches that have a disclaimer that some results have been culled because of DCMA letters. Anyone know a) what that is about and b) why anyone would want to remove themselves from google's index.
posted by Mitheral at 7:37 AM on February 27, 2006

Google should just filter out any results relating to Perfect10 on any search, image or not. See how they like them apples.

It's not like any of us believe in the "purity" of Google's results anymore...
posted by sourwookie at 7:38 AM on February 27, 2006

This is actually a pretty intriguing case for the reason that jefgodesky mentions.

While the judge did note that the transformative use of the P10 intellectual property--namely creating thumbnails of copyrighted work--was a "transformative use" and served a public good, he also declared that it was a "consumptive use" because it basically created images that why inferior to the originals in the PC world were perfectly fine for use in the mobile phone world.

Mobile wallpapers and screensavers are a big business and simply do a Google image search on your phone and save the image and you've just, the argument would go, taken $2 out of the pocket of P10 or some other rights holder.

And public, it's not that software that resizes images violated copyright, its that Google is transforming P10's IP into state that is directly substitutes for P10's commerical product and--this was important to the ruling--is hosting those images on Google servers. P10 also tried to get the judge to rule that the way that Google frames image results was a copyright violation, but the judge didn't buy that argument, in large part because Google wasn't hosting the content.
posted by donovan at 7:48 AM on February 27, 2006

Does this mean I have to have real sex now?
posted by bardic at 8:12 AM on February 27, 2006

Imagine Google had a song search. Imagine that they had "thumbnails" of each song that would play a few bars of the chorus. Imagine those thumbnails linked to a site where you could buy and download, among other things such as the entire song or album, those same songs as a ringtone. What possible incentive could you have to go to the ringtone people's site to (legitimately) buy the music when you could just download it from Google?

As I hope the above example illustrates, at least in terms of music, this is pretty much settled law. It may seem silly, but as the law currently stands I have to side with the judge on this one. It would, for instance, provide a public service to place the transcript of a stand-up comedian's routine in a search engine so that you can search for their jokes. It would, however, at the same time to a large degree impinge upon their ability to release saidsame jokes as book, or even individual lines of it in greeting cards or whatever, and that ain't fair. Ditto porn.

I know the whole Google "We make algorithms, not policy, therefore individual requests to index/de-index individual sites will not be honored in favor of automated routines that accomplish the same thing" attitude, but they certainly do seem to need to be careful not to take this attitude too far. They have to realise that not everybody shares their vision of The Googleable World, and they have to respect companies or individuals whose business model or personal ideology doesn't mesh well with their own.
posted by ChasFile at 8:29 AM on February 27, 2006

Why don't they just use robots.txt? I don't understand why people sue eachother when there are simple technical solutoins.
posted by delmoi at 8:34 AM on February 27, 2006

Presumably these images are on the other side of a pay-wall... shouldn't the onus be on P10 to ensure that Google and its ilk cannot crawl their images? For that matter, if a bot can get there, damn likely a ten-year-old prolly can, too.

[...when I was ten we had to *work* to get access to pictures of nekkid women.]
posted by deCadmus at 8:34 AM on February 27, 2006

Presumably these images are on the other side of a pay-wall.

No, the images are on various sites that are displaying Perfect 10 images without permission.
posted by alms at 8:55 AM on February 27, 2006

Google doesn't thumbnail P10's images. They thumbnail images on sites that stole P10's images. Why a DMCA take-down notice wasn't sufficient, I don't know.
posted by empath at 9:04 AM on February 27, 2006

So why go after google instead of after the sites that are republishing the images without permission?
posted by raedyn at 9:06 AM on February 27, 2006

Because Google have money. And lot's of it and at the moment Google is the bad thing so this is good PR.
posted by Navek Rednam at 9:19 AM on February 27, 2006

I'm sorry, but this is retarded. P10 should be going after the sites that are actually infringing on their IP. Going after Google is just shooting the messenger.
posted by mullingitover at 9:31 AM on February 27, 2006

Going after Google is just shooting the messenger. - mullingitover

Pretty much. If the other sites didn't republish the pics w/o permission, google never would have gotten them and this whole thing would be a moot point.
posted by raedyn at 9:54 AM on February 27, 2006

You know what the real crime is here?

Cell-phone wallpapers., and ringtones.

especially the goddamm ringtones.
posted by dvdgee at 10:07 AM on February 27, 2006

I saw Lessig field a question about this topic just last week, and he illuminated some interesting facts.

Specifically, Perfect 10's business does not revolve around being a pornographer -- they make their money from copyright infringment lawsuits such as this one. Examples:

Perfect 10, Inc. v. CCBill, LLC (340 F.Supp.2d 1077, 2004)

Perfect 10, Inc. v. Cybernet Ventures, Inc. (213 F.Supp.2d 1146, 2002)

Perfect 10, Inc. v. Talisman Communications Inc. (2000 WL 364813)

Lessig indicated they accomplish this by posting their images publicly, tag them with identifiable information, and then search the web for these infringements.

This is very profitable, because if they can show that the infringement was done willfully, then the infringer will be liable for up to $150,000 per infringement. 17 U.S.C. § 504(c)(2).

Another aspect that Lessig mentioned was that they closed Google's fair-use defense by coming up with their own "thumbnail search"; which meant that google's use trampled upon their own commercial activities.

Porn + Slick Lawyering = $$
posted by karson at 11:20 AM on February 27, 2006

When I had a site that I didn't want indexed by google, I was able to have the site completely cleared from google's cache and search results in less than 48 hours. Following an automated routine that is linked from images page.

So, google is responsive to getting a site unlisted. But if someone else had mirrored the content, I would have to go after the mirror...how could google be of much help? That google got sued instead of the copyright violators is crazy.
posted by dejah420 at 11:21 AM on February 27, 2006

So why go after google instead of after the sites that are republishing the images without permission?

Because there are too many sites pirating the images. The pirate sites undoubtedly include both commercial and personal sites. They are located in lots of different countries. In short, it would be too much work.

So instead, they're targeting Google, which is the tool that people use to find these sites. Makes sense to me.
posted by alms at 11:24 AM on February 27, 2006

karson writes "Specifically, Perfect 10's business does not revolve around being a pornographer -- they make their money from copyright infringment lawsuits such as this one."

That is really, really interesting. What a despicable business model.
posted by OmieWise at 11:34 AM on February 27, 2006

karson - thanks for your insight. That helps me make sense of this.

Oh and yuck.
posted by raedyn at 11:42 AM on February 27, 2006

I'm not sure I'm buying the argument that karson attributes to Lessig. Presumably the judge did his due diligence as part of the court case and his brief indicates that P10 "generates virtually all of its revenue fro the sale of coyrighted works" and goes on to detail the multimillion dollar investments the company has made in producing this IP.

As to the assertion that P10 "closed Google's fair-use defense by coming up with their own "thumbnail search"; which meant that google's use trampled upon their own commercial activities." well that's not reflected in the decision I read. P10 in fact licenses smaller images to a third party in Europe that sells them as mobile wallpaper--this is the business that the Google thumbnails were deemed to have trampled.

ChasFile's hypothetical ringtone example is a good analogy of what's going on here.

We're at a moment when the much ballyhooed "digital convergence" is actually happening. I'm no lover of DRM and am an ardent supporter of fair use, but this case is fascinating because something obviously useful and in the public interest when you limit your thinking about digital media to PC/Internet--Google Image Search--suddenly becomes murkier when you realize that, in a few years, mobile phones will be the most ubiquitous platform for digital media.
posted by donovan at 1:06 PM on February 27, 2006

karson, did Lessig say how they find these watermarked images? Not through Google, surely?
posted by ny_scotsman at 3:39 PM on February 27, 2006

Imagine Google had a song search.

they do...kinda
posted by TechnoLustLuddite at 6:36 AM on February 28, 2006

alms wrote: So instead, they're targeting Google, which is the tool that people use to find these sites. Makes sense to me.

I heard that people are using these tools, taxis, to go to a site where they can find illegal drugs. The goverment should target taxis in the war on drugs instead of drug dealers. Makes sense to me.
posted by Fontbone at 12:46 PM on February 28, 2006