July 21, 2006 | By Derek Slater

Digital Copyright Showdown in P10 v. Google

If adult entertainment publisher Perfect 10 gets its way in its lawsuit against Google, millions of web publishers, bloggers, and web users will suddenly be on the wrong side of copyright law.

As we've previously discussed, Perfect 10 claims that Google violates its copyrights by indexing Perfect 10 photos posted on unauthorized websites as well as making and delivering thumbnail images of those photos. Despite the fact that Google promptly removes these links when notified, Perfect 10 sued. This digital copyright showdown may reach far beyond Google and has drawn the attention of Hollywood, tech companies, and public interest groups.

EFF has filed a brief on behalf of itself and the Library Copyright Alliance supporting Google before the 9th Circuit Court of Appeals. After the jump, learn about the many critical issues at stake in this case:

Search engines and innovation: If Perfect 10 gets its way, search engines and innovation in related tools will be held hostage to copyright holders' demands. Perfect 10 argues that because Google "created the audience" for sites it indexes, it should be on the hook for whatever infringements occur on those sites. It also contends that Google directly infringes its copyrights merely by in-line linking and framing images published on other sites. The District Court rightly rejected both of these arguments.

The former claim may sound especially familiar; most of Perfect 10's arguments on this point aren't so different from those made by the entertainment industry?but not accepted by the Supreme Court?in the Grokster case. Supporting Perfect 10 in friend-of-the-court briefs, Hollywood is hoping to get in this case what it couldn't in Grokster: a broad veto over technological innovation.

Web publishers and users: If linking and framing constitute public display or distribution of a copyrighted work, as Perfect 10 argues, this case will turn millions of web publishers and bloggers into pervasive infringers. Moreover, Perfect 10 is arguing that every time you visit a web page with an infringing image on it, you are an infringer, and Google should be held responsible for pointing you there. Simply following a link to a web page should not expose Web users to copyright infringement.

Fair use: An earlier precedent, Kelly v. Arriba Soft, already protected thumbnail images created by an image search engine. Though the District Court found otherwise, fair use should also protect Google Image Search's thumbnails?they don't supplant the full-size photos and allowing a few copyright owners like Perfect 10 to hold up search engines is likely to create windfalls for a few, at the expense of the general interest of both copyright owners and the public in improved access to visual information.

Another digital riff on protections for dual use tool creators, the definition of copyright holder's exclusive rights, and the bounds of fair use?it's three critical copyright issues rolled into one case.


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