A pornography publisher, Perfect 10 — I’m sure you could find it if even I don’t link to it! — filed suit in federal district court in California against Google and 100 does yesterday on Friday, November 19, 2004, according to the complaint (I have redacted the complaint to remove pages 36 – 54, which include graphic images). Perfect 10’s 12 claims listed in the complaint include alleged infringements of copyright, trademark, and right of publicity as well as unfair competition.
On a quick read, I’m not sure how the plaintiffs will distinguish their complaint regarding direct infringements with respect to the thumbnails of Perfect 10’s copyrighted images rendered by Google from the way that the Kelly v. Arriba Soft court handled it. The Kelly court found that the search engine made by Arriba Soft (now called Ditto.com) did not infringe the copyrights of a photographer whose works were included in the visual search engine results so long as the works were rendered by the search engine as “thumbnails,” rather than as full-size and full-resolution images. (To be exact: “We hold that Arriba’s reproduction of Kelly’s [the photographer’s] images for use as thumbnails in Arriba’s search engine is a fair use under the Copyright Act. We also hold that Arriba’s display of Kelly’s full-sized images is not a fair use and thus violates Kelly’s exclusive right to publicly display his copyrighted works.”)
In general, the trademark claims and the right of publicity claim seem similarly hard to make out as against previous challenges to search engines. Courts have generally seen search engines as serving a public interest and have tended to afford them certain leeway as a result, at least whenever a balancing test is involved, as it is in the fair use analysis on most of the relevant copyright claims.
What’s intriguing about Perfect 10’s claims, and I suspect their best shot at differentiating their claims from previous assaults on search engines, is the way they’re trying to hook nearly the entire set of claims on (in a general sense) the notion that Google gets adwords revenue thanks to the porn company’s content that’s been copied and distributed on “stolen content websites” who in turn pay Google (so one would presume from the complaint, anyway) for click-throughs — see paragraphs 27 – 34, then claims 2 (contributory infringement of copyright) and 3 (vicarious infringement of copyright) and the subsequent trademark, unfair competition, and right of publicity claims.
In short, Perfect 10 says: Google is profiting — a lot — from the bad acts of others and they should stop doing it and pay us for what they’ve done. Unpack the logic and it gets tortured pretty quickly (I’m sure Perfect 10 has *never* gotten any of its purported 100,000 unique visitors per month from Google nor have any of them paid the $25.50 per month for access), but the gist of their argument is plain. I suspect that Perfect 10 will not be the last to go after Google’s riches with such a series of claims.
It might turn out to be interesting to see how the district court — if the case ever gets to trial — will think about the 4th factor in the fair use defense in terms of the definition of the “potential market.” Consider what the Kelly court said about Ditto.com’s thumbnails: “Arriba’s use of Kelly’s images in its thumbnails does not harm the market for Kelly’s images or the value of his images. By showing the thumbnails on its results page when users entered terms related to Kelly’s images, the search engine would guide users to Kelly’s web site rather than away from it.” While the fair use analysis in the Perfect 10 case might be the same or substantially similar on the question of how transformative the use is of the copyrighted work, the analysis of its effect on the “market” — depending on how that’s defined — might be different. Or so it would seem the Perfect 10 lawyers would like you to believe.
Jonathan Zittrain, in e-mail conversation, raised the issue of how the DMCA safe harbor, and even CDA Section 230’s safe harbor, might fit into the mix, especially with relation to the pendant state claims. JZ points also to Utah Lighthouse as relevant to Perfect 10’s claim.
I expect that there will be lawyers lining up to represent Google, if they choose to fight back. And no small numbers of us interested in filing amicus briefs, should it get so far as that.
P.S.: One small irony (or perhaps not so ironic): all the chatter about this case and newly created links to Perfect 10 might raise its Google PageRank. And no doubt add to the *terrible* dilution about which Perfect 10 complains.