Clinton appointee Judge A. Howard Matz in California has issued a questionable and potentially disastrous result in copyright litigation, holding that Google’s thumbnail indexing of images from third-party infringers of pornographer Perfect 10’s copyright is likely to infringe and can thus be preliminarily enjoined pending trial. “The court is building a standard that only a lawyer could love,” said Laurence Pulgram, a partner at Fenwick & West in San Francisco, who also questioned the court’s disregard for precedent. (Xenia P. Kobylarz (!), “Perfect 10 Racks Up Preliminary Injunction Against Google”, The Recorder, Feb. 22). Earlier coverage: Nov. 24, 2004.
Update: See also San Jose Mercury News (via Lattman).
Another update: And, via Bashman, here’s the opinion.
One Comment
Amazing! From the news story, it looks like the only difference between this case and that of Kelly v. Ariba Soft (also 9th Circuit and decided the opposite way) is that the porn site also sold its photos as thumbnails.
Does that mean that an author, for some reason not wanting to be quoted under fair use, could sell all the individual paragraphs from his book separately and prevent anone else from quoting from the book.
Let’s hope not. Such a situation would make a hash of fair use.
–Mike Perry, Inkling Books, Seattle
P.S. And I love Ariba. It was a key component in my (successful) copyright dispute with the Tolkien estate over a Lord of the Rings chronology, Untangling Tolkien. The sort of terse snapshots of events needed for a detailed chronology, I argued, are like the thumbnails of art in Ariba. If the latter is fair use, then so it the former.