©ollectanea

Last week the 9th Circuit held in the Perfect 10 v. Google case that use of thumbnail images for a visual image search engine is fair use. Does this sound like de ja vu? Well, in early 2006 a California federal district court appeared to ignore the earlier holding by the 9th Circuit in Kelly v. ArribaSoft which first dealt with the issue of use of thumbnail images in a visual image search engine and found that use was fair use.

Perfect 10 publishes images of nude or nearly nude “natural” women. It sued Google for copyright infringement claiming that Perfect 10 had a new market for thumbnail images – for use on cellphones. Instead of buying the image, however, users could now download the thumbnails from Google. [Don’t even get me started about why anyone needs an image of a”nekked” woman on a cellphone as a further distraction when driving an automobile!] The district court in Perfect 10 was persuaded that Google’s use of the thumbnail images likely infringed Perfect 10’s copyright and issued an injunction. The 9th Circuit has now reiterated its ArribaSoft holding: use of thumbnail images in a visual image search engine is fair use.

Moreover, the court noted how important search engines are to the public. It also highlighted the fact than any potential lost sales of thumbnails was speculative at best. The court’s decision also seems right on technology grounds: a frame or in-line link is not a reproduction but is merely a pointer to the site on which the photograph is displayed.

So, this raises questions for me about the Google Library Project and how its associated pending litigation may be affected by the Perfect 10 ruling. Is copying an entire book fair use when the purpose is to create an index and no user would be able to access the entire book? Are search engines so valuable to the public that a court will hold that the reproduction that normally would have been problematic is now fair use? Is this the way all indexing will be done in the future and thus technology dictates a similar ruling?