Copyright tussles for Google

The search giant, at odds with an increasing number of copyright industries, is taking some provocative legal stances.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
6 min read
In the 1970s, an adult movie theater in Dallas claimed it had the right to show a pirated copy of "Behind the Green Door" because the movie was so lewd it could not legally be copyrighted.

The theater lost when a federal appeals court ruled that the film, which featured Marilyn Chambers in a then-novel scene of interracial sex, nevertheless was fully covered by federal copyright law.

In an unusual twist, Google recently echoed that argument when defending its reproductions of professional photographs of scantily-clad women through its popular image-search feature. Google claimed the photographs are not "creative" enough to enjoy copyright law's full protections because they're intended primarily for "sexual gratification." A federal court rejected that claim earlier this year.

That lawsuit is not an aberration. As Google becomes more deeply interested in books and video, and expands its search domain beyond Web pages, it has found itself increasingly at odds with established copyright industries including book publishers, journalists, and professional photographers. In addition, its keyword advertising has antagonized some trademark holders, though Google did prevail against Geico in a dispute two years ago.

"It's part of their absolutist approach," said Joshua Kaufman, an attorney representing Agence France-Presse in the wire service's copyright dispute with Google. "I think they're afraid that if they give an inch, it becomes a slippery slope. It's all or nothing."

Some spats between copyright holders and Internet companies are inevitable. Search engine operators would like to index, sort, and regurgitate photographs, videos and text found on the Web without forking over licensing fees. Copyright holders, on the other hand, want to make more money from their content.

And some disputes do settle amicably. On Wednesday, the Associated Press announced that it had resolved a dispute with Google over the use of its headlines and photographs.

For its part, Google says it values copyright and points out that it allows copyright holders to opt out of having their content included in the company's search products. Copyright holders, however, say it's impractical for millions of people to opt out of hundreds of search engines. Still, Google says its expectations are reasonable.

"One of the challenges is, 'This is Google. What would the world be without Google?' We don't want the world without Google. We want the world without Google infringing our copyrights."
--Russell Frackman, attorney representing Perfect 10 in its lawsuit against Google

"People kind of forget that we have a lot of our own copyrights to protect and that copyright law is a big part of that protection," said Alexander Macgillivray, a lawyer at Google. "We're a search engine that exists and knows it exists only because of the tremendous impact of creators."

In one recent case, a Nevada man named Blake Field had written a collection of short stories and then sued Google. Field claimed his stories had been unlawfully offered as cached versions without his explicit permission.

Google's attorneys responded by questioning whether Field's stories should enjoy the highest degree of copyright protection. The stories are "minimally creative works," represent "simply" Field's "ramblings" and "are certainly not works that are deserving of any enhanced protection," Google said. Its attorneys added that Field had "spent only three days" writing the stories.

"Factual nature" of nudes
To a large extent, Google was required to make that argument because of the way the litigation process works. Part of the fair use analysis that judges undertake depends on the "nature" of the copyright work--and important works, especially those that are unpublished, can tilt the balance in favor of the copyright holder.

"The thing that we didn't want was for the judge to make a presumption that would warrant him giving more protection under fair use than would be standard," said Google's Macgillivray.

Google made the same argument in its ongoing lawsuit with Perfect 10, claiming the Web site's high-quality nude images were not especially creative because its site "implies a factual nature of the photographs."

Even some copyright scholars who are generally sympathetic to Google and the technology industry say that was a bit of a stretch.

Jessica Litman, who teaches at the University of Michigan Law School and wrote the book Digital Copyright, called Google's argument over nude images "silly."

U.S. District Judge A. Howard Matz went further, saying Perfect 10's "photographs consistently reflect professional, skillful, and sometimes tasteful artistry. That they are of scantily-clad or nude women is of no consequence; such images have been popular subjects for artists since before the time of 'Venus de Milo.'"

Google did not try to renew that argument in its appeal brief filed last month (click here for PDF).

Litman said, however, that these cases are "high stakes" for the company. "If Google is wrong about fair use, it probably has to go out of business," she said.

To be sure, any company as successful as Google will be slapped with its share of nuisance lawsuits, some of which are only attempts by so-called "copyright trolls" to win a litigation jackpot. A bizarre lawsuit in Pennsylvania was filed by a Web publisher who claimed that Google was not permitted to index his Usenet postings. And in the Nevada case, the plaintiff was an attorney who intentionally chose not to use Google's opt-out process and then sued.

In addition, lawyers dueling over copyright arcana can be tempted to squeeze a slew of arguments into a brief--even weaker ones--just in case.

"They like to take pokes at us saying it's an adult magazine although the pictures were pretty tame," said Russell Frackman, a partner at Mitchell Silberberg and Knupp who is representing Perfect 10 in its lawsuit against Google.

"In one sense it's not surprising because I'm sure Google would like to have everything out there in the public domain--except its own indexes and search results--because that would make its life a lot easier. But it doesn't work that way," said Frackman, who also was lead counsel in the lawsuit that shut down the original Napster.

Old alliances are reforming in the Perfect 10 case, which yielded the adult publisher a limited injunction against Google's image search and is now before the 9th Circuit Court of Appeals.

Digital rights advocate Electronic Frontier Foundation and technology lobby groups are siding with Google. The Motion Picture Association of America and the American Society of Media Photographers are filing friend-of-the-court briefs aligning themselves with Perfect 10. Oral arguments are expected early next year.

Frackman, Perfect 10's attorney, said that one of the obstacles he faces is convincing judges that not everything search engines do is innocent. "One of the challenges is 'This is Google. What would the world be without Google?' We don't want the world without Google. We want the world without Google infringing our copyrights," he said.

Headlines: Free for the taking?
Some news organizations have found themselves at odds with Google as well. Agence France-Presse's lawsuit, which claims the search company unlawfully incorporated AFP photographs, headlines and excerpts from the beginning of articles, is in the preliminary stages before a federal judge in Washington, D.C.

In a brief, Google's attorneys claim that journalists cannot enjoy copyright protection in their headlines, even though it may take a considerable time for an editor to craft a compelling one.

"AFP headlines are terse factual phrases, that are forbidden to exceed one line on a computer, or approximately 10 words, and usually are shorter than that," Google's brief said. "Thus, their brevity precludes protection."

Many lawyers would agree. A U.S. Copyright Office ruling (click here for PDF) says that "titles of works" are not copyrightable. But the U.S. Congress has never enacted a law one way or another.

"Nobody has actually sued the Copyright Office to try to get it to register a title or short phrase, so it hasn't been tested in the court," said Litman, the law professor.

Kaufman the partner at Venable in Washington, D.C. who is representing AFP, says: "We think that some headlines are protectable, that some story leads are protectable. It's a real skill and it's original work. A story lead is the most creative part of the story--it's what most people read."

"I think Google probably takes a position that there's such a large universe of things out there that they'll always have enough (to index) so even if it hurts the newspapers and wire services, that's enough for them," Kaufman said. He added that if Google offered an "appropriate amount" to settle the lawsuit, AFP would be delighted to drop the lawsuit tomorrow.

Macgillivray said that Google views itself as complementary to copyright holders' own interests.

"Without them," he said, "there would be no great (reason) to search all of the great content that's out there on the Web."