In the recent case, Judge A. Howard Matz of United States District Court for the Central District of California, said Google’s use of thumbnail-sized reproductions in its image search program violated the copyright of Perfect 10, a publisher of X-rated magazines and Web sites, because it undermined that company’s ability to license those images for sale to mobile phone users.
Representatives of publishers and authors who have filed lawsuits against Google over its Book Search program said they believed that the decision raised questions about a case that Google had cited in its defense of the Book Search program.
Update: 02/26 15:24 GMT by B :Bibliofuture notes a post from Lessig where he says “If fair use is lost just because you can imagine a market, then there is no fair, or free use, in a digital age. Every use triggers copyright law, because every use is a copy. And there’s no limit to the ability to imagine a market, so then every use would have to be with permission. That’s the same point made against Sony if all it takes is imagining a non-infringing use, then there could be no such thing as secondary liability.”
Lessig
Lawrence Lessig, a Stanford Law Professor, wrote about Google Book Search in his blog in November of 2005. He addresses some of the issues that this story is bringing up. It is a good pieve to read because he ia able to give a reliable legal analysis as he discusses the issues. The blog entry is here.
Re:Lessig
Unfortunately, Lessig’s analysis (which I also recommend) doesn’t apply to the Perfect 10 case–or at least it may not. Perfect 10 has a license deal with a mobile-phone content operator to sell what are effectively thumbnail-size pictures of nekkid wimmen, and one of the claims the judge thought might win at trial is that Google’s thumbnails interfere with that market. In this case, it’s not a hypothetical market, unlike the Google Book Search case.
Of course, it’s never that easy: Fred von Lohmann’s analysis of the Perfect 10 preliminary injunction ruling, which I recommend, notes that the license deal arose after Perfect 10 filed suit, which could suggest that it’s there for the purposes of proving infringement. (I’m not suggesting that, to be sure, since IANAL.)
Other than one increasingly “whatever Google does is wrong” professor who shall be nameless, I haven’t seen much commentary to suggest that fair use in general is at grave risk from the Perfect 10 case. It continues to be true that, if nobody’s willing to defend fair use in court, fair use effectively disappears.