IP Democracy: Court Upholds Google Thumbnails as Fair Use

Google’s having a good day. For one thing, it’s “Searchology Day” and the search giant is announcing a boat-load of enhancements to its search tools. (Danny Sullivan is recapping the interesting sounding developments here.)

More importantly, the Ninth Circuit Court of Appeals ruled today that Google’s image search results don’t constitute direct infringement when copyrighted images show up in the results. (Public Knowledge’s Sherwin Sly has a quick summary and analysis of the decision here and the group has posted the full decision here.)

To briefly recap the background: A company called Perfect 10 Inc. (which sells photos of naked women who are, well, perfect “10s”) sued Google for copyright infringement because its copyrighted images were captured as thumbnails through Google’s image search. The District Court for the Central District of California basically ruled in favor of Perfect 10 and enjoined Google from showing Perfect 10’s images. Both companies appealed for different reasons, but Google had the most at stake.

The appeals court reversed, favorably for Google, some parts of the lower court’s decision, but more importantly it found that Google’s image search didn’t violate Perfect 10’s copyright, even though Google reproduced entirely, albeit in thumbnail format, Perfect 10’s photos.

The court found that Google’s thumbnails are “fair use” and did so in a very interesting way. The three-judge panel basically said that the image search results, even though all they do is replicate the content in whole, are “transformative” and therefore meet a key factor in deciding whether use of a copyrighted work is fair use. The court found that not only are the search results transformative, they are “highly transformative,” perhaps even more so than, say, a satire or a parody of a copyrighted work.

In the opinion, Judge Sandra Ikuta wrote:

a search engine may be more transformative than a parody because a search engine provides an entirely new use for the original work, while a parody typically has the same entertainment purpose as the original work.

What’s also noteworthy about the opinion, at least to me, is the high esteem in which the court, like other federal courts, hold Google for doing something good for society by making information and knowledge more accessible. The good will toward Google is clear throughout the opinion:

We conclude that the significantly transformative nature of Google’s search engine, particularly in light of its public benefit, outweighs Google’s superseding and commercial uses of the thumbnails in this case.

Something else that occurred to me as I read the decision, a development that I’ve been noticing lately: the U.S. federal courts are becoming remarkably smart and knowledgeable about the Internet and Internet technology. Go back and reread some relevant federal court decisions in 2000, 2001 and 2002 and it’s clear that back then federal judges (even in the tech-heavy ninth circuit) had less than a good grasp of the underlying technologies and facts that drove their decisions.

But the court in this case spent a great deal of effort to accurately and cogently explain the mechanics of HTML and how HTML code relates to files stored on servers and how in-line linking works, not exactly rocket science but complex nonetheless. The important point is this: you would not have seen this level of expertise in the judicial system even as recently as four years ago.

Either judges and clerks have come up a very steep learning curve over the past few years or attorneys are doing a far better job of briefing the courts, or both.

Update: Although this decision didn’t strike me as big news (despite all the pixels I spent on it), The Washington Post fronts the business section of its Thursday print edition with the ruling.

Posted by Cynthia Brumfield on May 16, 2007 6:16 PM to IP Democracy