A Perfect Storm of Infringement

A publisher of nude photos is calling Google a massive infringer of copyright as part of a lawsuit.

Norman Zada is CEO of Perfect 10, which publishes a print magazine and a subscription-only Web site showing nude photos of models under exclusive contracts. On Wednesday, his lawyers asked a U.S. District Court in Los Angeles to order Google to stop showing images of Perfect 10 models.

Zada sued Google in November 2004, after Google allegedly ailed to respond to 34 notices under the Digital Millennium Copyright Act (DMCA). Zada’s beef with Google’s image search was that most results led not to Perfect 10, but to rogue sites that posted unauthorized copies of his images.

Google’s point of view, as expressed in an e-mail provided to internetnews.com, was that he should take his complaint to the offending publishers.

“Google is a provider of information, not a mediator,” read the e-mail, signed by “The Google Team.” It went on, “Even if we were able to eliminate the offending page from our index, it would still be on the Web. Every few weeks, our robots sweep the Web for content. If the site is still available on the Web when we crawl, we will likely pick it up and add it to our index again.”

Instead, Zada sued Google, bringing a similar suit against Amazon.com’s A9 search engine in July 2005. He said he sued the search engines rather than the infringing Web sites because many of the latter are overseas and close to impossible to shut down.

A Google spokesman said, “We believe the lawsuit is without merit, and we will defend against it vigorously.”

The case hinges on two previous court decisions: Kelly vs. Arribasoft and MGM vs Grokster. The attorney handling Perfect 10’s case is Russell Frackman, the attorney who represented the record companies in the Grokster suit.

Arribasoft launched Arriba Vista in November 1998 as the first search engine for Web-based images. “Arriba Vista provides unique search capabilities including quick viewing of millions of thumbnails and direct access to the specific page of the Web site where each visual is located,” the company press release said.

Photographer Lesley Kelly sued Arribasoft for copyright infringement. He complained Arriba Vista, later called ditto.com, was improperly making money by showing advertising against thumbnails of his photographs. The court ruled that the image search engine’s display of thumbnails constituted fair use.

Zada said there were three crucial differences between Kelly’s case and his. First, Kelly’s images were on view on his Web site for free, while Perfect 10 charges $29.95 a month to view images. “Google is giving away what we sell,” he said.

Denise Howell, an intellectual property attorney with the law firm of Reed Smith, said, “These folks know what they’re doing, and they’re playing for high stakes. The arguments they’re making are ambitious.” She said Perfect 10’s lawyers would have an uphill battle trying to prove that the Ninth Circuit Court’s ruling on thumbnails shouldn’t apply.

But Ralph Oman, an attorney in the intellectual property group of the law firm Dechert, and a former U.S. Register of Copyrights, said that the facts are different enough to make the argument.

“The images you can get do satisfy the need without directing them to [Perfect 10],” he said. “I think that it probably is true that Google does make a lot of money through the actual content found by the search engine. Unless Google is able to somehow demonstrate that this is not destroying the ultimate market for the materials, I think they’ll have a hard time making a fair-use defense.”

Second, while the thumbnails shown as search results on Arriba Vista linked to Kelly’s own Web site, most Google image search results show photos that were not indexed from Perfect 10, but from other sites that have ripped off its shots.

“It’s not fair use to copy an infringing copy,” Zada said.

The question of whether search engines’ cached files should be considered a copy at all, let alone an unauthorized one, is still an open question, Howell said. “A court probably would look to the Kelly v. Arribasoft case in the question of images, although that didn’t give any sort of guidelines for how big is too big, and how little is little enough. They’re trying to make some hay with that.”

But she said one important concept from that case was that the function of search engines was important and should be encouraged and supported by the courts.

Oman pointed out that the DMCA doesn’t hold ISPs liable for infringing material stored on their servers, but “you can’t create an archive of images without the permission of the owners of copyright.”

Finally, the complaint argues that the concept of thumbnails needs to be changed, thanks to picture phones. While a thumbnail might have little value to a computer user, selling image downloads already makes a nice bit of revenue for Perfect 10, and it’s a market that’s expected to grow.

But online porn continues to be the big moneymaker — it’s almost as lucrative as pay-per-click advertising. The fact that Google places contextual ads on many of the sites that show unauthorized Perfect 10 photos adds another wrinkle or two to the complaint.

Zada charges that Google’s $78.9 billion market cap was built on massive copyright infringement, especially of the sexy and pornographic images in its index. “It’s all explainable when you realize that sex sells, and they have copied every nude picture, every picture in Playboy and every nude scene in movies. Eyeballs are leaving every normal medium and heading toward the search engines.”

Because Perfect 10 owns the rights of publicity for its models, Zada argues that if Google uses any of their names to sell advertising, it’s infringing on that right.

This is the argument made by car insurance company Geico in its trademark infringement case against Google. An appeals court recently ruled that allowing competitors to use the name Geico in ads was trademark infringement, but left open the question of whether allowing competitors to bid to display their ads when someone searched for the name infringed.

The other case in point is Grokster.

In June, the U.S. Supreme Court ruled that in some cases, technology providers could be held liable when their products are used to infringe copyrights. The Supremes focused on the business models and behavior of Grokster and Streamcast, two providers of peer-to-peer software.

Zada argues that Google should be held liable for helping searchers find sites that display stolen Perfect 10 images because, in many cases, those sites also show Google AdSense contextual ads. “Google not only copies and displays Perfect 10 images itself,” the request for the injunction reads, “but also links them to Infringing Sites with which Google has partnered and from which Google receives revenue through its AdSense advertising program.”

Google is in plenty more hot water over copyright.

Its Google Library project got bad reviews from book publishers who didn’t like the search engine copying books for its index without their permission.

The news agency Agence France Presse successfully induced Google to remove its stories from Google News — although its stories still show up on affiliates’ sites.

And it’s embroiled in a trademark infringement suit similar to Geico’s brought by American Blind & Wallpaper Factory.

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