Not so perfect fair use, says courts to Google |
The Perfect 10 vs. Google legal battle has taken a curious twist, for those not familiar. The courts of sided with Perfect 10 that the use of thumbnail images on Google Image seach is infringing and not fair use. The argument is that third party sites are swiping those thumbnails and displaying them along with Google Adsense beside them, thus making money from their display.
It seems like the court took reasonable and defensible positions here in applying 1970’s copyright law to Google’s 21st Century Internet practices. Also, Google is not Napster, but once again we see the risks of basing one’s business, or part of one’s business, on the “fair use” defense.
I agree with Eric and others who are saying the courts made the right decision. Consider for a moment that a thumbnail image in a website is a full size image in a cell phone. Google plans to appeal this decision, of course, but I think they’ll lose on appeal too. This could greatly change the landscape for Google’s free image search, but perhaps not for other image search engines which do not have a contextual ad program.. Google’s take down when asked to instead of ask first policy is rightly being called into question.
And I think the same thing is going to happen with Google Print: Copyright vs. Copyrape, The Google Print Saga.
Where do you stand on this one? Do you think the courts should have sided with Google?
Did this post make you go hmm?
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It seems to me that if the images were published on a public website (no login required) then a takedown-when-asked policy is fine.
If the images are valuable and they didn’t want them appearing on Google images or other search engines there is always robots.txt… or a login system.
If you don’t want people to see it on a search engine, don’t make it publicly available!
Comment by yoyo42 — February 24, 2006 @ 9:18 am PST
Thanks for sharing your views, yoyo42. The “Don’t make it public” comment is a bogus argument, sorry. And despite the spec, robots.txt isn’t respected by all spiders. There are lots of great copyrighted content that is intended to be shared from one place (for free, donation or pay), not scraped and stolen so that the author has to track down the offender(s) and play DMCA cop.
Comment by TDavid — February 24, 2006 @ 10:03 am PST
No more bogus than yours.. if a spider *does* ignore robots.txt then fair enough, take them to court.
Google doesn’t take the content and give it out itself - it links to it. People who want to see it will still go to the original site following the link.
The power of the web and the whole reaosn for it’s success is the ‘wide open’ ethic that has been there from the start. There are mechanisms such as ‘registration required’ which are widely used and accepted to stop exactly this problem.
Let Google link to thumbnail ‘trailer’ images. Put the ones you don’t want indexed behind a robots.txt or registration barrier and it will be respected. If you don’t want the trailer images to be used for, say, mobiles, then splash a big watermark across them or make them otherwise not as good as the official content.
Robots.txt stops Google. Login systems stop Google. Asking to be removed stops Google. To fit with what you seem to want the only solution is not to index the web *at all*. How would that work then? Are you saying it’s only the ads that make it a problem? Are there any search engines with no ads or other fees?
Comment by yoyo42 — February 24, 2006 @ 11:23 am PST
yoyo42 - I’m not saying there shouldn’t be indices or search engines, so don’t take this out of context. What I am saying is if you have a commercial interest, as Google does with their Adsense program, that they probably need to tone down their brazen: we’ll post it until you tell us to take it down policy OR become much better cops. Which I think is what will happen as a result of this legal activity.
And yes, absolutely it is only the ads causing the problems because Google and their affiliate are being compensated, yoyo42. If you have an affiliate program where you pay webmasters it is your responsibility to police these affiliates. It’s not the responsibility of the copyright owner to be the Google Rentacop. This has nothing to do with robots.txt, this has to do with profiting from stolen content.
The courts didn’t rule that thumbnails themselves weren’t fair use, just thumbnails when used by a company who profits from those thumbnails indirectly as Google does in the case of Adsense ads running alongside content stolen.
In the case of Google Print, they wanted to include a publisher’s entire catalog with an opt-out policy by author. That’s BS, why should authors have to opt-out? It should be opt-IN. Do you just walk into somebody’s house and start eating out of their fridge and only stop when they say: “wait, you need to ask us permission before you can do that?”
There is nothing stopping you or I from creating a search engine with thumbnails as long as we don’t also run an affiliate program where that same content can be pilfered and have our ads running beside them which we profit from. It’s a completely different thing than saying the content shouldn’t be indexed at all.
Robots.txt doesn’t stop affiliate activity or rogue bots which are the incidental problem here, that’s Google’s problem to police those affiliates. Or are you seriously suggesting that should be the problem of every copyright owner too?
If that’s the position, then Google needs to start cutting the content creators with DMCA complaints in on the revenue they remove from the affiliates who stole their content. That won’t happen.
Comment by TDavid — February 24, 2006 @ 11:42 am PST
Sorry, TD, but I agree with yoyo42 on this one. IMHO, if it’s on the Internet and it isn’t login-protected, then it’s public and fair game for search engines. End of story.
Comment by Sterling Camden — February 24, 2006 @ 2:00 pm PST
Interesting Sterling and no need to apologize because my point is not that the perfect 10 content isn’t fair game for the search engines. I am saying I agree it’s not fair game for search engines who also have affilliate programs that compensate affiliates for using images taken from their image search service. Big difference here that I’m not sure is so clear.
Perhaps you can explain why you disagree on this explanation, if you do? All of perfect10.com member area is password protected, at least from what I can see, but they don’t seem to be using any robots.txt (which is interesting in and of itself, you’d think they would use a robots.txt if they really were this p.o’d about the situation).
Money being involved complicates matters like these.
You don’t think Google should be doing a better job policing their affiliate program? That should be the start of the story and clearly the courts agree here. As I said above, there is nothing that would prevent you or I or anybody who doesn’t have an affiliate program that compensates DMCA violaters from building and deploying an image search engine and we would be within fair use guidelines using thumbnail images (that’s already been proven in court). In fact, we could download the Alexa database (if they would let us in, of course) and get something along the lines of Google Image Search.
This is a more prickly discussion than meets the eye.
Comment by TDavid — February 24, 2006 @ 2:20 pm PST
Maybe you can clarify this for me. Are these thumbnails accessible to you or I without a P10 account?
Comment by Sterling Camden — February 24, 2006 @ 2:37 pm PST
I might be wrong about this (and please anybody reading correct me if I’m wrong), but I believe these images were originaly spidered from the outside tour pages, although I notice now that Perfect 10 has a flash tour which means Googlebot couldn’t scrape the images from there. This means the offending Adsense affiliates would have had to take screenshots or do other photoshop magic to bring the pictures to their sites which in turn Googlebot would scrape from their sites (with no robots.txt) and then put into Google images. The Googlebot is pretty dumb in the sense of not understanding what content belongs to whom. I can protect it with robots.txt, put behind pass protected gateways but that doesn’t stop Joe Infringing User from copying and republishing and then the content is open season to Googlebot there.
Also, these thumbnails on a cell phone are the size of a full sized image so it’s a different type of situation than just having thumbnails of larger images. P10 seems to contend that this use on the third party sites (not on Google Images, but the Google Adsense affiliate sites) is hurting their ability to do business in a very busy adult market — adult cellphone content.
Whether P10 is truly economically hurt by this or not is debateable, but I do agree that Google needs to go after affiliates using any content from Google Images or anywhere else that hasn’t been purchased for commercial usage. Their opinion seems to be, that’s not our problem unless we’re notified and then we’ll take down the affiliate. This puts the work on the copyright holder where I’m not sure it belongs. If a company can start an affiliate program then they have the responsibility of policing the TOS to make sure that their affiliates aren’t spamming or using other illegal marketing tactics.
Also, a lot of these adult sites pay for rights to use these pictures on certain domains or in certain ways (mobile, inside member’s areas, etc), so they have legal considerations as far as licensing too. Finally, the rules for 2257 are pretty strict and would certainly apply to cell phone content which as mentioned above a thumbnail representation could be the full size image. They have to make sure compliance is in order.
The sad part about this court decision is that it has the potential to abuse the thing that yoyo42 and yourself are concerned about — and I am too, frankly — legitimate spidering operations and true Fair Use. I’m not for further limiting or complicating fair use, but when money is involved, I think further scrutiny is important to have because it’s not fair use to have somebody use images they didn’t pay for or license and make money from the place who makes it easy to find the images to begin with.
That’s what this case ultimately boils down to: who is getting paid for the use of the content. And in the case of cell phones, a thumbnail can be considered content. And when Google pays their affiliate commissions for clicks on ads next to this unlicensed, infringed content, this makes the situation much more prickly and questionable.
Comment by TDavid — February 24, 2006 @ 3:08 pm PST
You’re really making me go “Hmm” with this one. It seems to me that the offender here is the affiliate who somehow got the image and posted it illegally (if that’s the case). But how would Google know about that activity in advance of a complaint from the plaintiff? So if the image is stolen, I would agree that Google should shut down the affiliate, but I don’t see how they could police that ahead of the complaint.
Comment by Sterling Camden — February 24, 2006 @ 3:25 pm PST
Most affiliate programs before they pay their affiliates scan at least some of the sites where the ads appear for compliance. Especially in the case of affiliates that make a significant amount of money. When these compliant officers, if you will, find these sites and see that, hey, they are using images without licensing or violating TOS rule A, B, C then they refuse to pay the affiliate and cancel the affiliate’s account.
Then if or in the meantime the coypright owner makes a DMCA complaint Google can show they acted in good faith and didn’t pay an affiliate using content without license.
Google has a period where they authorize the Adsense sales, so that’s the time where they should be catching these sites and crediting the advertisers and cancelling the affiliates. Will they catch all of the violations ahead of time? Of course not, but they can catch more than they are.
If these offender sites were legitimate adult sites then they’d post 2257 compliance statements for the images being used which in and of itself puts them in violation of the Google Adsense Terms of Service which says clearly that adult sites aren’t allowed. So it’s an easy look and see adult content and say: that violates our guidelines and cancel the account.
Of course if they let some of these accounts slide, Google makes more money because they don’t have to refund the advertisers too for clicks made on illegitimate affiliate accounts.
The logical answer from my perspective is Google needs to hire more compliance officers and cancel more adsense accounts. It would be trivial for you and/or I to find Adsense affiliates that are violating the Adsense TOS right now. That leaves Google open for many, many more lawsuits like P10.
You hit the affiliates where it hurts (the money) than they will be less likely to infringe. Or they’ll move to another easier affiliate program that doesn’t have as many or as thorough compliance officers.
Google could have successfully defended against this P10 lawsuit if they could have proved they were making reasonable efforts to combat and cancel these rogue affiliates. I think the court saw what the rest of us already know, that Google wasn’t making enough of an effort to combat this situation.
This is just one of the numerous Adsense flaws (see my post on accidense for another one). I like the program, we use the program here and on a few other sites, and we do our best to comply by their rather stringent TOS, but it wouldn’t hurt my feeling to see a lot more offending affiliates (splogs particularly) ejected from the program. This would protect the income for all legitimate affiliates.
Comment by TDavid — February 24, 2006 @ 3:51 pm PST
I can see why P10 would be peeved about people stealing their images and using them to power affiliate sites and make money. I can even sort of see how Google should police their affiliates - just like 180solutions etc. don’t.
But making Google manually check every single affiliate site and track the original images? That seems like an impossible task to me. And where do they have to stop - if an affiliate has all legal self-written text, or creative commons, or whatever other totally legitimate content but spams to get people to come and see, is that something they should take account of?
Let me get one thing straight though - you aren’t saying Google should check the standard image search results for copyright images, just for affiliate sites using them illegally? In which case you have a point, but it’s impractical. And AFAIK copyright in the print world *does* rely on the content owner making a complaint - do you want the web to be *more* strict than meatspace now?
And obviously the rules have to apply to every search engine - after all Yahoo would point people to the page just as much as Google. Or do Google inflate the ranking of pages with AdSense ads on them?
and BTW your spellchecker can’t find /usr/local/bin/aspell
Comment by yoyo42 — February 24, 2006 @ 3:53 pm PST
yoyo42 - you might not have seen my explanation above before posting. I think Google needs to take reasonable steps to police their affiliates, not that they must catch every single affiliate violation. That’s not practical or reasonable for them and especially not for smaller affiliate programs which might be limited to one or two people running the program. Keyword here: reasonable.
That’s what they’d need to prove in court if challenged and I don’t think right now they can do that. Do you?
Yahoo has Yahoo Publishing Network (YPN) and soon MSN will have a contextual ad affiliate program, so both of them would have the same rules for their image search as Google. The rules should only apply to search engines with a conflict of interest (an affiliate program) because those are the search engines which stand to gain from the infringing activity. Other search engines which had no affiliate program should be allowed to use any thumbnail image on an opt-out basis.
Amazon is being sued for this too under their Alexa search. The money is what complicates things here.
Thanks for notifying me of the spellchecker error, looks like we need to get Aspell fixed on the new dedicated server we moved this site to recently. It’s on the to-do list
Comment by TDavid — February 24, 2006 @ 4:04 pm PST
Well you’re right, they croseed in the post
Actually you’ve half persuaded me. But what it has definitely done is show that the way this is being reported is a long way from the real argument in court… I keep in touch with techie news quite a bit (half a dozen newsy RSS feeds on the desktop at work all day long) and as far as I could tell form that this was all about Google indexing the images for the *normal* index search engine - affiliates have hardly been mentioned.
I agree Google (and esp. affiliates) should not be making money off uncredited copyright material. But I’m still not sure it should be up to them to be proactive rather than just very responsive. I’m happy enough to wait and see how it pans out though, now I see the full picture.
As long as it isn’t threatening basic freedom to index and search the publicly available pages…
Comment by yoyo42 — February 24, 2006 @ 4:47 pm PST