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A San Francisco federal appeals court ruled today that nude thumbnails used by Google did not infringe upon the copyrights of adult publisher Perfect10.com. The appeals court ruled that the small images fell within the “fair use” exception in copyright law because they were used in the search process and not for commercial gain.
The ruling by a three-judge panel reverses an earlier, lower court decision that had blocked Google from showing the small images. This was a closely watched case, particularly by members of the motion picture and recording industries, which are the most vociferous complainers of Internet copyright infringement. If Perfect10.com had won the appeal, the case would have added to the arsenal of supporters of increased copyright protection.
Art Brodsky, a spokesman for the advocacy group Public Knowledge spoke on behalf of fair use advocates. “We think this is a tremendous decision for the principle of fair use. It gives search engines and other useful services the ability to take advantage of computer technology in the search for and use of information.”
The win for Google comes on the heels of a copyright suit they lost against a group of Belgian newspapers just three months ago. In that suit, Google was required to remove the plaintiffs’ newspaper headlines and links from the Google News Service. Since that loss, Google has negotiated with the Belgian newspapers to restore use of their headlines and links to the GNS, by consent of the Belgian publishers.
On the one hand, the ruling vindicates Google. In writing for the panel, Judge Sandra S. Ikuta said, “We conclude that the significantly transformative nature of Google’s search engine, particularly in light of its public beneifit, outweighs Google’s superseding and commercial uses of the thumbnails in this case.” On the other hand, this same panel admonished Google, stating, “There is no dispute that Google substantially assists Web sites to distribute their infringing copies to a worldwide market and assists in a worldwide audience of users to access infringing material.”
In so saying, the San Francisco 9th District Court of Appeals directed the lower court to reconsider whether Google knowingly allowed unauthorized copies of Perfect10.com photos to be made available to the Internet public and then failed to attempt to curtail the practice.
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