The case, which has become much larger in scope than the original dispute between Perfect 10 and Google’s Image Search, pits the search engine against virtually every major copyright holder in the U.S., according to Perfect 10 owner Norman Zada.
“Every major copyright holder is on Perfect 10’s side here,” Zada told XBIZ. “Google has become one of the largest copyright infringers of all time. They have taken my content, organized it, categorized it, placed adds around it and made a huge profit.”
Briefs siding with Perfect 10’s position have been filed by the Motion Picture Association of America and the Recording Industry Association of America, among others.
While Zada sees Google as the source of online copyright infringement, the EFF brief argues that the company merely facilitates information.
“Perfect 10 wants to hold Google responsible for the misdeeds of the websites it links to," EFF attorney Fred von Lohmann said. "No search engine could survive if that were the rule, nor, for that matter, could most bloggers or other web publishers. If Perfect 10 succeeds in convincing the court that in-line linking and framing of images constitutes a public display or distribution of copyrighted work, then millions of web publishers and bloggers will suddenly be on the wrong side of copyright law — as well as the millions of web users who may follow a link to a website with infringing content."
While the court is not expected to rule on the argument for several months, Zada, who believes that the economic future of all copyright holders hangs in the balance, said that Google is not as innocent as the EFF makes it out to be.
“Google’s arrogance is virtually unheard of in the corporate world,” Zada said. “In my opinion, they may have started off with good intentions when they developed Image Search, but their corporate bottom line means they are now making unauthorized copies of everything.”
Zada also said that he believes Google’s fair use argument to be without merit, saying that the exception to the copyright law is mostly for educational use, not for-profit ventures.
A Google Image Search for “Isabelle Funaro,” a model who has appeared in Perfect 10, returned 118 results. None of the results link to the Perfect 10 website, which does not have an affiliate program. According to Zada, all nude photos of the model returned from the Google search are Perfect 10 content.
Many of the results thumbnails link to third-party sites with full-sized Perfect 10 images.
Text on Google’s Page Creator site warns against using copyrighted material and linking to images hosted on another publisher’s site, a practice referred to as “stealing bandwidth,” since the image loads on the hosted site, rather than the site from which the user views it.
According to Zada, Google’s business model operates in direct contradiction to its stated warnings regarding copyright infringement and bandwidth stealing because the company profits greatly from third party sites that offer little more than a few images surrounded by Google AdSense ads.
In opposition, von Lohmann argued in the EFF brief that Google merely provides a link to third-party sites that contain Perfect 10 images, but does not actually “display” full-size images as defined by U.S. copyright law.
The EFF’s brief was filed on behalf of the EFF and the Library Copyright Alliance.
