Internet law Update: Digital Millennium Copyright Act and Fair Use under Copyright Infringement Law.
In the recent case of Perfect 10 v. Google, Perfect 10 sought relief from damages alleged against Google for its part in aiding users in viewing Perfect 10’s copyrighted work. Perfect 10 is a site that allows the viewing of nude models with a required subscription. Some of Perfect 10’s content has hosted on other sites that are copyright infringing by hosting the files. The reason that Perfect 10 went after Google is because Google’s search engine was displaying copyright infringing content that was being hosted by the websites that have leaked the Perfect 10 content. Essentially, Perfect 10 made a contributory copyright infringement" argument.
The Ninth Circuit Court ruled, “Google does not … display a copy of full-size infringing photographic images for purposes of the Copyright Act when Google frames in–line linked images that appear on a user’s computer screen. Because Google’s computers do not store the photographic images, Google does not have a copy of the images for purposes of the Copyright Act. In other words, Google does not have any “material objects … in which a work is fixed … and from which the work can be perceived, reproduced, or otherwise communicated” and thus cannot communicate a copy. Instead of communicating a copy of the image, Google provides HTML instructions that direct a user’s browser to a website publisher’s computer that stores the full-size photographic image. Providing these HTML instructions is not equivalent to showing a copy. First, the HTML instructions are lines of text, not a photographic image. Second, HTML instructions do not themselves cause infringing images to appear on the user’s computer screen. The HTML merely gives the address of the image to the user’s browser. The browser then interacts with the computer that stores the infringing image. It is this interaction that causes an infringing image to appear on the user’s computer screen. Google may facilitate the user’s access to infringing images. However, such assistance raised only contributory liability issues and does not constitute direct infringement of the copyright owner’s display rights. … While in-line linking and framing may cause some computer users to believe they are viewing a single Google web page, the Copyright Act, unlike the Trademark Act, does not protect a copyright holder against acts that cause consumer confusion.”
The Ninth Circuit Court, under U.S.C. Section 107, used four factors in determining whether a particular use of a copyrighted work was a permissible fair use, those factors are: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantially of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.” Utilizing those four factors the Ninth Circuit Court holds that Google’s creation and display in search results of lower resolution ‘thumbnail’ copies of infringing images found on third party websites for the purpose of aiding the public in locating such images is a fair use that does not infringe the rights of the copyright therein.
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