I recently read a case where Perfect 10 (P10), a company who sells images of naked ladies, sued Google for indexing P10 images on the Google Image Search (GIS). 508 F.3d 1146 (9th Cir. 2007). GIS finds an image on the internet, turns it into a searchable thumbnail, and then links to the original.
P10 says that Google is infringing upon a copyright. Google defends on "fair use". Google wins because the thumbnailing step is "highly transformative", serving a different function than the original. Those looking to buy the original aren't likely to settle for the thumbnail. Google isn't hurting P10's market (at least, P10 didn't prove that Google was hurting their market).
To skip some steps, Google creates and hosts "original" thumbnail copies, and simply links to the full size images hosted on other websites.
This is a good time to repeat my earlier disclaimer. IANAL. YANMC. TINLA. For entertainment purposes only.
If, supposing alternate facts, Google hosted full size pictures instead of thumbnails, then their use would not have been transformative, and they probably would have lost their case. And this brings us to the heart of today's post. When Google hosts a full copy, it may be liable.
There is so much more that can happen here. Copyright law is applied on a case-by-case basis. Anything could happen. 17 U.S.C. §107 intentionally avoids bright line rules. No presumptions can be made. I cannot say this any clearer — this is just for entertainment. I haven't done my research and google probably already won its battles.
How can Google Reader allow me to copy a webpage and publish the result on my shared list? Check out my latest post for an example: My Shared Items
I just posted a picture of Max Biaggi riding the 2009 Aprillia on the amazing new Portimão track. The image is linked from SuperbikePlanet. Said another way, the image is not hosted on Google's server. That is a good thing for Google's liability.
But the text is not linked. Well, a link exists. But the article (this happens to be a one sentence article) is copied in full. Non-transformatively.
I could run through a boring fair use test. Instead, I'll just conclude that this stuff makes me wonder. Maybe it is permitted because the site permits Google crawling. Maybe because much of the Reader material is published by RSS anyway (a copyright holder can't really publish and then expect privacy, right?). Maybe the commercial use is minimal (though I think the commercial use is pretty strong — Google gains a lot of valuable information on me and my friends, and then shares it with spooks in a Virginia bunker). Maybe, maybe, maybe.
One of my favorite uses of the "note" button is to take an annoying burned feed and share it in full. Is that fair use?
What would the Roman Emperor do?
