Google's fair use of Perfect 10's thumbnail nudes

Perfect 10 is in the business of licensing its copyrighted images of naked women to end users. Preventing end users from circumventing licenses by downloading infringing reproductions of those nude images is therefor critical to Perfect 10's business.

When Perfect 10 started licensing small versions of its images for cell phones, it became concerned that Google's free thumbnails of the nude images would supplant that entire market. Perfect 10 was also concerned with Google's in-line linking and other "arms length" uses of Perfect 10's full size images. On appeal of both parties from the district court ruling, the 9th Circuit affirmed several lower court rulings with regard to Google's display of Perfect 10's copyrighted nude images.

In Perfect 10 v. Amazon/Google, the 9th Circuit affirmed the lower courts ruling that Perfect 10 had indeed made a prima facia case that Google's display of the thumbnails was an infringement. The 9th Circuit, however, reversed the lower court's finding that Google would not be able to prove the infringement was a fair use under the Copyright Act.

The high court found rigorous application of copyright principles in this instance would stifle the very creativity the Copyright Act was designed to foster. The 9th Circuit relied heavily on the "transformative" nature of Google's use, finding rather than superseding Perfect 10's use, Google's thumbnails use transformed the original copyrighted work into a new creation. The high court held that "the significantly transformative nature of Google's search engine, particularly in light of its public benefit, outweighs Google's superseding and commercial uses of the thumbnails in this case."

With regard to full size images, the 9th Circuit appeared to affirm the district court's "server test" of infringement. The Server Test looks at whether the owner of the computer is actually storing and serving the electronic information to the user. Under the test, in-line linking or framing does not constitute a "display" as that term is used in the Copyright Act. While in-line linking and framing may confuse users as to which computer is actually "displaying" the images, confusion is a factor in under trademark law, not copyright law.

The 9th Circuit also ruled the lower court erred in its resolution of the issue of secondary (contributory and vicarious) liability because the lower court failed to consider whether Google knew of the third party infringements and failed to take reasonable steps to prevent access thereto.

Brett Trout

Perfect 10 Google Amazon vicarious contributory copyright

The World's Most Expensive Trademarks

Millward Brown Optimor has just released its Brandz Top 100 Most Powerful Brands survey. It is interesting to compare these recent rankings of 2007 trademarks with the 2006 list.

2007
1. Google $66.4 billion
2. GE $61.9 billion
3. Microsoft $54.9 billion
4. Coca-Cola $44.1 billion
5. China Mobile $41.2 billion
6. Marlboro/Altria $39.2 billion
7. Wal-Mart $36.9 billion
8. Citigroup $33.7 billion
9. IBM $33.6 billion
10.Toyota $33.4 billion


2006
1. Microsoft $62.0 billion
2. GE $55.8 billion
3. Coca-Cola $41.4 billion
4. China Mobile $39.1 billion
5. Marlboro $38.5 billion
6. Wal-Mart $37.5 billion
7. Google $37.4 billion
8. IBM $36.1 billion
9. Citibank $31.0 billion
10. Toyota $30.2 billion

Brett Trout

Brandz trademarks Google Microsoft Millward Brown

Google Blog Search Patent

Kevin O'Keefe, of the world reknowned Lexblog, has an interesting post on Google's new Blog Search patent application. Although Google filed the patent application in 2005, the USPTO just published the application last week.

Kevin also provides a handy chart, compiling information from Bill Slawski, on how Google Patent Search ranks blog search results and filters spam. It is worth a look - at the very least just to see if you are doing anything with your blog that Google might see as a spam indicator.

Brett Trout

google spam blogs patent lexblog

Patent reveals nextgen Google

. . . log processing system may track actions performed by each particular client with respect to that client's history of accessing various web sites. In this case, the web site mapping storage may rank the web pages within a web site based on the particular client's user history and the web site mapping information may be different for each particular client . . .

What? The foregoing is an excerpt from Google's newly published patent application covering its site links technology. Filed June 20, 2005 and published December 21, 2006, Google's US Patent Application No. 20060287985 covers Google's method of providing you multiple search results from a single website. You know sometimes when you do a Google search and get some indented results from the same web address listed directly below a search result? That is a site link, a link to another page from the same website that may be relevant to your search query. The newly published patent application covers Google's method of collecting and displaying site link search results along with their regular search results.

Why should you care? You have been seeing the indented site search results on Google for months. Well, the above language taken from the patent application suggests Google is working toward a something much more interesting - custom search results. The above patent application language indicates Google may be on the cusp of customizing its search engine results for each user. When I search for cookies, the nextgen search will give me results relating to a small text file located on my hard drive. When my mom searches for cookies on the nextgen system, she will get results for different chocolate chip cookie recipes.

The system will examine your previous searches, determine the results you clicked on, and "learn" what you are really trying to find. Sure, the generic Google will always be available for new users and the aluminum foil hat crowd, but the nextgen Google promises to cut a lot of the fat out of your search results.

Brett Trout

Google patent searches