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| Chilling Effects Clearinghouse > Copyright > Weather Reports > A Perfect 10 Storm for Google | 
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|  A Perfect 10 Storm for GoogleStephen Dang, Samuelson Law, Technology, and Public Policy Clinic, February 27, 2006 Abstract: Storm clouds gather as a court found Google’s image search, which generates thumbnail-sized image reproductions from websites, to infringe Perfect 10’s copyrighted photos. The holding potentially weakens Google’s ongoing litigation over its Book Search Program, where the Association of American Publishers (AAP) claims Program search results providing short “snippets” of copyrighted books infringes the copyright holder’s rights. Google raises a fair use defense, arguing that the snippets are transformative and do not harm the copyright holder’s commercial interests. Google’s effort to scan and digitize books of several university libraries may have suffered a legal setback earlier this month when a judge found that Google’s image search program infringed the copyright of Perfect 10, a pornography publisher. The judge explained that Google’s thumbnail-size copies of larger images available on the actual web page undermined Perfect 10’s ability to license similar-sized images to cell phone users. What does this mean for the Google Book Search Program? It potentially weakens Google’s fair use defense against copyright infringement, which it has asserted in both cases. In Perfect 10 v. Google, Google argued that its thumbnail reproductions were transformative because the reduced images were no substitute for the original work, and the reduced images provide a public service by allowing users to easily search the Internet. Ultimately, this argument failed because Google’s thumbnail-sized reproductions actually impaired Perfect 10’s ability to sell similar quality images. Will the same fair use defense of Google’s Book Search Program suffer a similar fate? Google thinks the decision will only apply in this isolated case. The Book Search Program seeks make 18 million books freely available in electronic form. About 16% of these books have had their copyright protection expire. 9% of the books are in-copyright and in-print. The remaining 75% are in-copyright but out of print – meaning their owners are almost impossible to locate and negotiate licenses with. Google’s current plan is to make all out of copyright books fully available. For books in copyright and in print, Google will allow owners to opt out, or else only make available that which the owners permit. So far, no controversy. The dispute arises over the remaining 75%, which Google plans to make available in “snippets” – small portions of the book analogous to the reduced image sizes produced by a Google image search, which the court held to infringe Perfect 10’s copyright. Seizing on this similarity, the Association of American Publishers (AAP) believes the Perfect 10 decision should put a stop Google’s activities. AAP argues that Google will profit from these freely available snippets via web page advertisement revenue, while impairing the © holder’s ability to sell similar short snippets of their works. But tomes of knowledge are quite different from pornographic images. The better analogy is that of Google’s web page search engine which produces a search index result comprised of “snippets” of web pages. Google produces these snippets without web page owners’ prior consent because to do so would be logistically impractical. Furthermore, these snippets provide a new and valuable public service in helping users navigate the web. Similarly, the book snippets Google plans to make available in their Book Search Program would provide a new and valuable service by allowing searchers to quickly scan across many literary works to help us understand our cultural history. Copyright law is intended to “promote the useful sciences and arts,” and therefore fair use defenses exist for copying that furthers these goals. Google wants to make the past available to everyone, and in doing so, help promote creativity. Independent authors lack the ability to provide such a service. So instead, the AAP seeks to focus the issue solely on monetary profit. The choice that best promotes creativity should be clear.
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