SAN FRANCISCO, CA – A wide swath of interested parties ranging from the Motion Picture Association of America (MPAA) to the American Library Association (ALA) have recently filed briefs in support of each side in the controversial copyright case of Perfect 10 v. Google, Inc., a litigation that all agree could have far-reaching implications for the very future of the internet itself.In his corner, Perfect 10 owner Norman Zada finds support from the MPAA, the Recording Industry Association of America (RIAA) and the American Society of Media Photographers (ASMP).
Throwing their hat in the ring on behalf of Google are the Electronic Frontier Foundation (EFF), the ALA, the Internet Commerce Coalition (ICC) and an assortment of other library associations and computer industry trade groups.
Both sides assert that a victory for their opponents would be potentially calamitous.
“Perfect 10 wants to hold Google responsible for the misdeeds of the websites it links to,” said attorney Fred von Lohmann of the EFF. “No search engine could survive if that were the rule, nor, for that matter, could most bloggers or other web publishers. If Perfect 10 succeeds in convincing the court that in-line linking and framing of images constitutes a public display or distribution of copyrighted work, then millions of web publishers and bloggers will suddenly be on the wrong side of copyright law – as well as the millions of web users who may follow a link to a website with infringing content.”
In the amicus curiae (“friend of the court”) brief submitted by EFF, von Lohmann contends that Google is not an infringer because, among other things, “Google never transmits full-size versions of Perfect 10 images.”
“What Google transmits is the address of the third-party server… where the image in question may be found, much like TV Guide provides the time and channel where a TV program may be found,” the EFF states in the brief.
Zada says he thinks the TV Guide analogy is a good one, but that Google and their supporters do not accurately and fully state the analogy.
“They’re doing a good job confusing the issue,” Zada told YNOT.
If Google is like TV Guide, it is like a version of TV Guide that “not only lists the channel and time of the show, it also broadcasts the actual show, and replaces the ads that would normally run during the show with their own ads,” said Zada.
In their brief, the EFF argues that Perfect 10 and its supporters are urging the court to “expand the reach of copyright law to the four corners of the digital universe, ensnaring everyone from the individual web surfer who comes across a Perfect 10 image online, to search engines like Google that index these images alongside billions of others on the Web.”
Perfect 10’s lawsuit and supporting arguments, the EFF contends, are tantamount to an “effort to hold the whole world liable for the infringing acts of a few.”
Zada said the concerns expressed by the EFF are overblown and constitute little more than a rhetorical attempt to deflect from the infringing acts of Google.
“From a practical standpoint,” said Zada, “nobody is going to sue an end user.”
Zada also dismissed the “fair use” arguments raised by Google.
“The other side in this case has not presented a single example of a use of a Perfect 10 image that is fair or explained why the display of thousands of Perfect 10 images has any ‘research,’ ‘news reporting,’ or ‘educational’ value,” Zada said. “They keep talking about pictures of cats and bridges. That is not what this case is about.”
Zada said that Google’s infringement goes beyond the display of thumbnails of Perfect 10 images or their frame-based display of the full-size images.
“They have never explained why Google is continuing to display hundreds of passwords to Perfect10.com, and what ‘educational value’ that might have,” said Zada, “or why Google is continuing to link thousands of P10 images to the websites which stole them, rather than to perfect10.com.”
The EFF, on the other hand, essentially argues that the benefits to the public of Google’s image search outweigh the impact of Google’s alleged infringement.
“In light of the importance of search technology to the Web and its users, the mere fact that commercial search engines turn a profit should not ‘trump,’ in the District Court’s parlance, the enormous public benefit they provide,” the EFF states in its brief.
Not surprisingly, Zada doesn’t see Google in quite the same light.
“Google is the world’s largest infringer, no doubt about it,” said Zada.
Google’s image as a “squeaky clean, ethical company” is questionable, Zada said, citing examples ranging from the recent ‘click fraud’ settlement to an apparent contradiction between the terms and conditions of Google’s advertising programs and the arguments the company makes in the lawsuit.
“By their own definition, Google is ‘stealing bandwidth,’” Zada said, citing terms of Google’s ad programs that prohibit the practice of ‘hot linking’ – i.e., linking to images hosted on another server without the express permission of the server’s owner.
The bottom line, Zada said, is that “Google has to stop making copies of copyrighted works,” if it wants to operate as a legitimate search engine.
“When you start copying images that people are obviously selling for a living, when you then surround those images with advertising on which you make money, you are no longer a ‘search engine,’” Zada said. “At that point, you’re just an infringer.”
