So on Friday, I’m at the ACIPA Annual Copyright Extravaganza in BrizVegas, and Matt Rimmer is talking about Google and all the court cases against it. And one of the cases is that brought by Perfect 10, suing over the existence of its (nudie wimmin) images in Google’s thumbnail images as displayed in Google’s Image Search function. And I have a bit of a laugh to myself, muttering phrases to myself like ‘total try-on’, and ‘haven’t you read Kelly v Arriba-Soft?‘ Then this morning, I get an email from a reader, with the title ‘Girlie Photos Land Google in Legal Trouble’, with a link to this SMH story. So I’m figuring, try on. Indeed, I shoot back a response – without reading said story – saying ‘looks like a try-on to me’. Finally, this arvo I read the story. And, it transpires, there is an injunction. My reaction: what? Or, as Marty Schwimmer – says, ‘wow’.

Now I’ve read the case. In essence, a preliminary injunction will be ordered against Google (terms yet to be determined) against its copying, and displaying , of thumbnail images of Perfect 10’s nudie wimmin pictures.

The judgment has some amusing footnotes: footnote 4 in particular, where the court notes that Perfect 10 complained ‘thumbnail’ is a misnomer when the image may be 8 x the size of an actual human thumbnail. Oh, puh-lease. Amusement aside, however, the case is interesting – even for us Australians. I reckon most of the discussion in the blogosphere is likely to go to the ‘fair use’ issue: ie, is Google’s creation, and display, of thumbnail pictures ‘fair use’. The court said no – something I thought was pretty interesting. But actually, from an Australian perspective, perhaps even more interesting are some of the parallels with Cooper, on liability for linking to stuff.

The extent of direct liability for linking to infringing material.

In this case against Google, the US court considers when Google can be liable for linking to material.

The first issue is whether Google infringing when it ‘in-line links’ to images on other people’s websites. If you have used Google Image Search, you will know that when you click on a thumbnail, you get a split screen. The top half comes from Google’s servers. The bottom half comes from the third party website. The bottom half is what you might call an ‘in-line’ link. The URL at the top will be the Google URL, but the bottom half is clearly coming from outside.

Is this an infringement? The relevant copyright right in US law is the right ‘to display the copyrighted work publicly’. And the issue here is whether, in the ‘in line link’ bit, it is Google that is ‘publicly displaying’ the work, or whether it is the third party. As the court notes,

‘From a technological perspective, one could define ‘display’ as the act of serving content over the web – ie, physically sending ones and zeroes over the internet to the user’s browser’

On this theory (which the court calls the ‘server theory’) it is the third party doing the displaying. Alternatively, on the ‘incorporation theory’:

‘one could define ‘display’ as the mere act of incorporating content into a webpage that is then pulled up by the browser.’

The court adopts the server theory, for a number of reasons:

‘…the most appropriate test is also the most straightforward: the website on which content is stored and by which it is served directly to a user, not the website that in-line links to it, is the website that ‘displays’ the content. Thus, the Court adopts the server test, for several reasons.

First, this test is based on what happens at teh technological-level as users browse the web, and thus reflects the reality of how content actually travels over the internet…

Second, adoption of the server test neither invites copyright infringing activity by a search engine such as Google nor flatly precludes liability for such activity…

Third, website operators can readily understand the server test and courts can apply it relatively easily….

Finally, the server test maintains, however uneasily, the delicate balance for which copyright law strives – ie, between encouraging teh creation fo creative works and encouraging the dissemination of information. Merely to index the web so that users can more readily find the information they seek should not constitute direct infringement, but to host and serve infringing content may directly violate the rights of copyright holders.’

Does this debate sound familiar to anyone, oh my Australian readers? Where the US talks about ‘publicly displaying’ a work, we talk about ‘communicating it to the public’. ‘Communicate’ is defined in the Act (s 10), to mean:

“to make available on-line or electronically transmit … a work or other subject matter.”

In Cooper, Tamberlin J was faced with a case where Cooper was managing a website that had many links to infringing mp3 files. Some were ‘active links’ that caused immediate download Despite contrary arguments from the copyright owners, Tamberlin J, too, applied what you might call a ‘server’ theory of communication, focusing on the technical realities behind the websites, rather than how things appeared to the user. Tamberlin J thus found that, while the Cooper website did facilitate the location and selection of files:

  • Cooper had not ‘made available’ the sound recordings – it was the remote website that did that.
  • similarly, it was the remote sites that ‘electronically transmitted’ the material to the user.

So note – despite the different wording of the US and Australian Acts, it would seem, on this point at least, there is some harmony.

Secondary (authorisation) liability for linking?

The second argument was that the search engine should be secondarily liable for the infringements of others. So the argument goes something like this:

  • third parties infringe P10’s material, the websites by reproducing their nudie pictures on third party websites without authorisation, and the users by downloading the infringing images
  • Google is responsible for those infringements, either through contributory infringement (Google knew of the infringing activity, and induced, caused or materially contributed to it), or vicariously (Google received direct financial benefit form infringement, and failed to exercise a right to supervise/control the infringements).

The US court rejected the theories of secondary liability. While this is notable, I’m inclined to think an Australian court – despite the broader concept of authorisation we have in Australian law – would reach the same result. In Cooper, Tamberlin J found that Cooper had authorised infringement, but Cooper’s site was a systematic index of copyright-infringing mp3s, on the findings of Tamberlin. Authorisation is at least more arguable there.

One interesting thing to note about this finding by the US court, however, is in footnote 17. There, the Court rejects the idea that when a user browses to a copyright infringing webpage, the user infringes through the temporary copy in the user’s computer.

I reckon it’s worth noting that in Australia, we might not reach the same result. Since the AUSFTA (and arguably before), we have had a definition of ‘material form’ that at least arguably ensures that all those temporary copies in the computer memory are reproductions withi the copyright owner’s exclusive rights.* In order to ensure that browsing wouldn’t be an infringement, the government inserted s 43A, which provides that

‘The copyright in a work, or an adaptation of a work, is not infringed by making a temporary reproduction of the work or adaptation as part of the technical process of making or receiving a communication’

So far, so good, right? Our user who views something infringing online is not themselves infringing. But here’s the kicker – subsection 2:

Subsection (1) does not apply in relation to the making of a temporary reproduction of a work, or an adaptation of a work, as part of the technical process of making a communication if the making of the communication is an infringement of copyright

Yet here we have a US court saying that the user’s ‘caching’ in RAM is fair use – even where the source material is infringing.

On one view, who cares, right? No user is going to be sued for this. Well, this Google case frankly shows why it is important. More often than not, this kind of infringement is used as the ‘hook’ in making an authorisation argument. Same thing happened in AVRA v Warner. The overbroad scope of primary infringement does matter because it affects what things third party technology providers are allowed to facilitate.

Oh, Attorney-General? Australian law should not be more restrictive than US law? Hello?

[*I should note that the effect of the new definition of material form is unclear; it is by no means a forgone conclusion that all temporary copies will in fact be covered]

And the fair use argument

The final thing that the case talks about is whether Google’s creation, and display from its servers of thumbnail sketches was fair use. On this score, the case is interesting just for its treatment of US law. There seem to be a couple of things that really told against Google here:

  • the sites Google linked to, that hosted infringing thumbnails, had Google-managed advertising on them. This increased the ‘commerciality’ of Google’s use.
  • More importantly, p10 were selling these little images – for mobiles. so there was market interference.

I reckon I’ll leave discussion of that point to the real experts. This post is already too long.

[update: I knew I could count on the experts: here is the US commentary on the case:

  1. William Patry Comment 1 (with comments about implied license and particularly fair use) and comment 2;
  2. Siva Vaidhyanathan (with comments about the implications for the Google Book Project)
  3. Marty Schwimmer of the Trademark Blog
  4. TechLawAdvisor (with links to pictures, apparently not nude)]
  5. Fred Von Lohmann at Electronic Frontiers Foundation (the news isn’t so very bad…)

More news coverage at CNet here.