HomeBlogsJonathanMinkoff's blogHere's My Pinky, Here's My Thumb: Here's My Copyright Infringement Suit; You Better Run

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Wanna guess what Perfect 10 does for a living? Good guess! What are you, psychic? That's right! Perfect 10 sells images of naked models. Apparently, there is a sizable market for such images. Imagine that. (Like any good legal commentator, I have not just taken the court at its word, but instead diligently followed up on this key aspect of my legal research, and I can verify that Perfect 10 does indeed sell images of naked women. Many women. All very naked.)

Perfect 10's customers purchase the images, both as full sized downloads and as thumbnails for display on cell phones. Now that just makes sense. This is clearly useful for when naked supermodels call. You can simply assign the image to their phone numbers. Finally, a way to keep all my naked supermodels straight! But I digress.

As you might imagine, people would sometimes buy copies of the images and then illegally re-post copies of these images on other sites without permission from Perfect 10. Bad sites. I think most people understand that this is blatant copyright infringement.

Maybe I'm giving people too much credit here. But I'll try to make it clear: if you don't own it and it's not in the public domain, you usually need permission to use it. (There is an exception called Fair Use, but it's much more narrow than most people think and I'll get into that in another article, but suffice it to say that when you make money and/or use the whole work, it's almost never Fair Use.)

So Perfect 10 should just sue these infringing sites, right? Sure. But Perfect 10 decided to sue Google too. And that might not strike many of us as intuitive. What did Google ever do but give us free email with massive storage capacity ... and maybe display satellite images of our homes? (Hmmm…that is a little creepy.)

But at issue here is that Google's web-crawling engine can search for all sorts of things, including images. Including naked images. (If you don't believe me, I suggest you try it. If you do believe me...ah, just try it.) When these images are found, Google will display a page of thumbnails to you which it stores in its servers' cache.

Google will honor the request of any site that chooses not to be indexed in its search. And Perfect 10 requested not to be displayed and Google removed them. But the infringing (or "bad") sites stealing Perfect 10's images did continue to be displayed. This prompted the suit. Now onto the code issue.

The technical method that Google uses to display the full-size images chosen by its users is called an "in-line link" by the Court, but I think most of us have more commonly heard the term "framing" to describe the process. The in-line link allows the content from an outside site to be displayed or "framed" by Google's content when in fact, Google never stores or copies the content (except for the thumbnail), but merely directs the user's computer to get it from the outside source.

The court found that Google's use of in-line linking to the full images hosted on other sites did not infringe Perfect 10's copyrights because Google neither stored nor copied the images at any time, it merely told the users' browsers where to find information.

But the thumbnails, which were stored on Google's servers, were found to infringe Perfect 10's copyrights because Google itself stored the copied images on its servers and because Perfect 10 had a potential market for the thumbnail-sized images (cell phones) which was being affected, at least in theory.

The test that this court used was called the "server test." The third party, or outside server, which provides the images, and not the Google server which makes the user "aware" of the links to follow, is the server responsible for displaying the images, and therefore the server responsible for any copyright violations. If only Google hadn't stored thumbnails in its own servers' cache, they would have been in the clear, according to this test.

Now keep in mind that the court found that:

  1. Google does not enable users to download the images because that capacity is built in to their browsers and not provided by Google (think Napster to discover why that's important);
  2. nor do users use any proprietary Google software (keep thinking Napster);
  3. nor does Google provide a link between users' computers facilitating transfers of material (are you thinking Napster yet?);
  4. nor does Google boast of facilitating the transfer of files (actually I think the court blew this one; The way I see it, Google does indeed boast of this ability. What is being the best search engine, if not that?);
  5. nor is Google the only provider of this material, since the websites serving the images were all publicly available, rather than on otherwise inaccessible individual hard drives (Sing it this time, perhaps in an effeminate, little falsetto: Nahhhp-sterrrrr).

Bottom line of all these findings is Google was found not to have contributorily infringed Perfect 10's copyrights. That means Google's framing of full-sized images didn't knowingly, materially contribute to these other websites ripping off Perfect 10's images. Additionally, because Google did not control these other web sites or even access to them since they were publicly accessible, Google was also found not to have vicariously infringed Perfect 10's copyrights.

So for Google it all boiled down to the coding that held the little thumbnails on Google's servers.

Let's imagine a hypothetical change in the code. Instead of Google's servers storing the thumbnails, imagine that some bit of Google's code instructs your browser to create the thumbnails on its own. (Before the Code Police Rodney King me, please imagine that, in this world, that magical, new code does not noticeably alter the speed of the search results.) Your browser would display miniature images taken directly from the various sites which Google would frame. According to this court, Google would be 100% in the clear, even though what you saw would be exactly the same as what the court found likely to be infringing in this case.

See how important code monkeys are?

Now imagine that instead of photos, we're talking about MP3s. In the world of copyright analysis, these works would get nearly identical protection. So what's the MP3 equivalent of a thumbnail? It would appear that short snippets of high quality MP3s are often non-infringing uses. But the thumbnails show the whole image, just miniaturized. Is there a way that sites could display full-length, low-quality versions of songs? What if the songs were full-length, but in 8 bit and in mono? Would that be acceptable? This court's reasoning seems to imply that unless the owner of the song had a market for this low quality version (cell phone ring tones perhaps?), this use would be non-infringing, or at least covered under the Fair Use exception. And of course, you'd want to link to, rather than store these MP3s. In any event, the court's analysis still seems to allow for you to non-boastfully link to full quality stereo MP3s -legal or illegal- stored on publicly accessible servers that you don't control.

Of course, until someone tries and either succeeds or fails in court, there's really no way to know if this would be legal or not. But the analogy holds. And it also shows what a strange and enigmatic state copyright is in.

The law is still in flux, still being interpreted. But for Judge Howard Matz of the United States District Court of the Central District of California, this "server test" is where things currently stand. Now that you know, where do you stand?

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