On May 16th, the 9th Circuit ruled on Perfect 10 v. Google, a case that has been closely-watched by content owners and ISPs. Initial reactions to the decision have been mixed. Jason Schultz of the EFF (which filed an amicus brief for Google) figures this is a big win for fair use:
While it leaves some questions open, the bottom line is that the Court upheld important policies of fair use and freedom online and resisted Perfect 10Ã¢â?¬â?¢s plea to put copyright owners completely in charge of how and when search engines and other online intermediaries can provide their users with links to images.
Schultz also notes that Perfect 10’s secondary liability claims, which received less attention in the press, were shot down by the Court. As he put it, “The [secondary liability] rule provides strong guidelines for future development and avoids the kind of uncertainty that could chill start-ups trying to get the next great innovation off the ground.” Anthony Falzone, the director of Stanford’s Fair Use Project, is less sanguine about the opinion
On one hand, it’s great for fair use, and recognizes the profound public benefit of search technology. On the other hand, it imposes an ill-considered and difficult-to-apply rule for secondary liability.
On the issue of contributory infringement, the Court held that Google could be found liable if Google had knowledge that infringing materials were available through Google, could take simple steps to remove such materials, and did not do so. Falzone thinks this is a “terrible” rule:
It doesn’t give search engine operators any clear guidance, and raises more questions than it answers. Knowledge of what? Each specific infringing image available? The fact there are infringing images out there, which of course there are — by the millions, if not billions? And what does “simple measure” tell us? Simple in concept? Practice? Effective but expensive?
Alfred Yen, writing at Madisonian.net, is also pleased by the ruling on prima facie infringement, but is similarly concerned about what constitutes “simple” steps to thwart infringing materials:
My concern is that Ã¢â?¬Å?simpleÃ¢â?¬Â? will be interpreted as Ã¢â?¬Å?easy for GoogleÃ¢â?¬Â? without any consideration for the social benefits that Ã¢â?¬Å?simpleÃ¢â?¬Â? actions might destroy.
Yen points out that “simple” might not really be so simple, in that an easily applied filter can cut a large swath through not only noninfringing uses of Perfect 10 content, but also through content that is unrelated to Perfect 10 the company:
To be sure, this removes assistance from those infringing Perfect 10Ã¢â?¬â?¢s images. However, this would also remove perfectly legitimate results like those concerning gymnastics scores, wikipedia entries or other editorial writings about Perfect 10, and references to the litigation.
Download the full Perfect 10 v. Google opinion (PDF).