May 16, 2007

9th Cir. on Perfect 10: Advantage Google

Filed under: open — Wendy @ 2:24 pm

Score 8.5 for public access. In Perfect 10 v. Amazon.com and Google, the Ninth Circuit reaffirmed and strengthened Kelly v. Arriba Soft, holding that neither showing image thumbnails nor inline linking/framing in an image search engine constitutes copyright infringement.

In the ongoing battle between adult-content purveyor Perfect 10 and Google, the court reversed the lower court’s ruling to hold that Google could not be held directly liable for infringement even if its image search spidered in some unauthorized images. As in Kelly, the court found that search was a transformative fair use. The court further rejected the argument that Google’s Adsense program made it a vicarious infringer.

The rub is that the court sent the case back for further factfinding on questions of contributory infringement and Google’s safe harbor defense.

Accordingly, we hold that a computer system operator can be held contributorily liable if it has actual knowledge that specific infringing material is available using its system, and can take simple measures to prevent further damage to copyrighted works, yet continues to provide access to infringing works. (citations omitted)

While that standard sounds nice in theory, it gums up the works of search engines in practice. In the dozen takedown notices Perfect 10 sent to Google are hundreds of URLs Google must investigate or remove, if the allegation is enough to impute knowledge. In return for ease of copyright-holder policing, the public gets less access to comprehensive search.

Now the court did say considerable factfinding remained before Google could be held contributorily liable, including “factual disputes over whether there are reasonable and feasible means for Google to refrain from providing access to infringing images.” Moreover, the safe harbor should protect Google, which routinely does “expeditiously” remove alleged infringements, but I’ve often argued the safe harbor goes beyond legal liabilities.

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