Opinion: A nudie site boasting "the world's most perfect natural women" is using the courts to undermine the way search works.I've been simmering ever since I heard about the injunction granted to Perfect10 (a nudie site boasting "the world's most perfect natural women") against Google for displaying their thumbnails in Google's image search.
See, it seems that Perfect10 has decided to start selling thumbnail images on mobile phones and they've convinced a judge that Google's free display of those thumbnails on its site constitutes a copyright infringement.
All comments about the desperation of those who'd pay money to ogle at miniscule snaps of non-surgically-enhanced babes aside, the ruling strikes me as a dangerous blow to the fair use of information on the Internet.
Typically, publishers are allowed to claim "fair use" for small bits of information excerpted from other sources as long as they give attribution and meet certain other criteria established over years of copyright law.
Google argued that their usage of the thumbnails constituted "fair use" under the law, but Perfect10 saw otherwise, pointing out that the publications of such thumbnails would cut into their bottom line.
Information wants to be (almost) free. Click here to read more.
Their argument, ostensibly based on the interpretation of fair use laws that fair use can be limited if "use deprives the copyright owner of income or undermines a new or potential market for the copyrighted work".
Google lost on this account, but the judge did reject Perfect10's claim that Google's "deep linking" into their site through search results did not infringe on their copyright.
Now if you're not selling porn online (and I've come to understand that a few of you aren't), you may not think that this ruling effects you directly.
But if you think about it for a bit, you may come to realize (like I have) that this kind of ruling cuts to the very heart of how we think about information, how publishers generate traffic and how search engines (the way most of us find our way to Web sites) may even be allowed to operate in the future.
At the heart of the concept of fair use is whether or not the information taken and re-used constitutes the very essence of the work its taken from.
This means that it's not always the length of the borrowed information that counts but rather its importance to the work. Borrowing a line or two from a novel is fine, but borrowing a signature riff from a popular song isn't…as the hapless rapper Vanilla Ice found out when he unabashedly sampled Queen's "Under Pressure" for his…errr…classic song "Ice Ice Baby."
Of course, one could argue that the song was bad enough to constitute parody (allowable under fair use), but Mr. Ice wasn't humble enough to go that route back in 1990.
The sticky point in all of this is what constitutes enough information to take away something from the original work. A thumbnail might seem like poor representation of the original and therefore not comparable to the original.
Next Page: Are search engines stealing?
But what about text?
If you search for the definition of a word and the excerpt that comes up in a search engine (say from the link to Dictionary.com) contains enough information for you to figure out that definition, isn't that breaking "fair use?"
If you borrow a subroutine from some JavaScript code you happen to pull up while viewing the source (and don't act like you never did that!), are you engaging in fair use?
Based on the argument that Perfect10 is using, there's a big possibility that the brief description or excerpt that comes up in a search constitutes a copyright violation because it could contain enough information that someone wouldn't have to actually go to the actual site. If you get the definition of a word from the excerpt, aren't you "stealing" from Dictionary.com?
I suspect that most folks would argue "no" (or, at least I'd hope so). But if you were to take Perfect10's argument to its ultimate conclusion, all search engines would potentially be illegal because they displayed content in the search results.
Whoah. It seems to me a pretty fair bet that nobody out there wants that to happen. In fact most of us spend a large portion of our time to make sure our sites show up on search engines.
"Search marketing" is the fastest growing form of online advertising out there because showing up high in a search listing means more traffic. Heck, people actually pay SEO (search engine optimization) companies to make sure it happens!
What Perfect10 (and other companies which are sure to follow in its wake) don't seem to realize is that the very content they're objecting to being shown is probably what's getting people to their site in general.
Those thumbnails they're objecting to are actually advertising that a site like Google is providing them. They're not being ripped off, but actually being provided a service by Google. Rather than suing, they ought to be thanking them.
The bottom line is that this whole issue comes down to one that's been dogging us ever since the Web began: the issue of who controls the distribution of content in a worldwide network that relies on linking to and often extracting content from other sites.
Click here to read about the tall order of trying to contain digital content.
For the most part, content providers see the benefit of having others link to them or borrow small pieces of content (properly attributed, of course) to send more traffic their way.
Right now, the process that search engines use control only at a very macro level by use of nospider tags; but clearly these aren't good enough for the content wars that are starting to brew.
Perhaps the whole problem could be avoided at the code level by extending HTML to include "copyright" tags that would limit the content that could be scraped from the site by search engines or others.
Publishers could control what content they want to share and what content they want to hold on to and search engines (or other automated content gatherers) would know what they were allowed to take.
Everyone's happy and the lawyers go away. Now that's a perfect 10!
