Wednesday, July 28, 2010

Perfect 10 v Google: Google substantive win on safe harbours

The latest P10 v Google ruling has been issued by Judge Matz at the Central District Court in California.  It's largely a win for Google claiming safe harbour protections under the DMCA.  The section of the decision that stood out was the judge's outline of the amount of work Google would be required to do just to investigate whether there may have been copyright infringement of just one of the 70,000 or so images under dispute. (Section B, p9 - 25) Extracts below:
"A. Threshold Requirements for Safe Harbor Under All Three Sections 
...the Court concludes that Google employs an
adequate repeat infringer policy and practice...

B. Safe Harbor For Web and Image Searches Under Section 512(d)
(“Information Location Tools”)
As discussed above, in order to find the copyrighted work to which Figure 5
corresponds, Google would have to search through either the perfect10.com website or
through a folder containing over 15,000 P10 images that P10 had submitted with its June
28, 2007 DMCA notice. Poovala Decl. ¶ 50, Ex. N3.
Thus, in order to process a single allegedly infringing URL, Google would have to
go through at least eight steps—(1) review the cover letter; (2) review the spreadsheet;
(3) insert Disk I; (4) open the “ALL LARGE ARE P10” folder; (5) open the
“big.supereva.com” folder; (6) open the “amy large 2.png” file; (7) determine the image
URL for the image in that file notwithstanding that the URL was truncated; and (8) refer
to the folder sent with a separate DMCA notice containing the 15,000 P10 images in
order to find the copyrighted image that corresponds to the “amy large 2.png” file.
Google might have to complete this process for many, if not all, of the 70,000 distinct
files contained in the DVDs (including some files that each contain hundreds of pages of
images), as well as for the external hard drive submitted with Ex. N3, which contained at
least 46,187 pages of material. See Khan Decl. ¶¶ 6, 13, 19. This would be even more
onerous than the situation in CCBill, where the Ninth Circuit found it was improper to
require the defendant to “first find the relevant line in the spreadsheet indicating
ownership information, then comb the 22,185 pages provided by Perfect 10 in order to
find the appropriate image, and finally copy into a browser the location printed at the top
of the page—a location which was, in some instances, truncated.” CCBill, 488 F.3d at
1113.
At the hearing, P10 voiced its concern that this Court’s ruling would prevent it
from including collections of infringing images as supporting evidence for otherwise
valid DMCA notices. Not so; P10 remains free to include additional supporting
evidence, such as screenshots, with the material it submits to a service provider.
However, at a minimum, the essential elements of notification—the copyright owner’s
attestations of ownership, nonlicensed use, and veracity of the notice; contact information for the complainant; identification of the copyrighted work; and identification of the
infringing material (including the location of that material and if necessary, a specific link
under section 512(d))—must be included in a single written communication. Because the
Group C notices fail to provide all of this information in one place, they do not impute
knowledge to Google. Perfect 10 has therefore not raised a genuine issue of material fact
as to whether Google is eligible for safe harbor under § 512(d).

C. Safe Harbor for Caching Feature Under Section 512(b)
Google has moved for summary judgment that it is entitled to safe harbor under 17
U.S.C. § 512(b) for its caching feature. As discussed in footnote six, supra, it is
undisputed that Google’s servers do not store images found in its cache. The images
displayed on a cached page are made available to a viewer from their original source, if
they still exist at that source. CSUF(b) ¶ 7-8. Thus, P10's claims for infringement based
on images “located in” Google’s cache are really claims based on Google’s linking to
outside infringing content, and the preceding § 512(d) analysis applies. That analysis
concluded that Google is entitled to the § 512(d) safe harbor with respect to linking to
outside infringement for all of the Group A, all of the Group C, and some of the Group B
notices...
Court GRANTS Google’s motion for partial
summary judgment for its caching feature.

D. Safe Harbor for Google’s Blogger Service Under Section 512(c)... P10's only argument that Google has a right and ability to control infringing
activity on Blogger is that the infringing material is on Google’s servers and Google can
take it down after it has been uploaded by users. The mere ability of a service provider to remove content after it has been uploaded is insufficient as a matter of law to establish
the right and ability to control the infringing activity required by § 512(c)(1)(B). UMG
Recordings v. Veoh, supra, 665 F. Supp. 26 at 1112-13. P10 has not raised a triable
issue that Google has a right and ability to control infringing activity. Thus, the Court
need not consider whether Google receives a financial benefit from the alleged
infringement because it already meets the criteria for safe harbor under 17 U.S.C. §
512(c)(1)(B).
Thus, Google has demonstrated that it is entitled to safe harbor for its Blogger
service under 17 U.S.C. § 512(c) as a matter of law.

V. CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART
Google’s motion for partial summary judgment of entitlement to safe harbor under 17
U.S.C. § 512(d) for its Web and Image Search. The Court GRANTS Google’s motion for
partial summary judgment for its caching feature based on 17 U.S.C. § 512(d), without
having to assess whether it would be separately entitled to safe harbor under 17 U.S.C. §
512(b). The Court GRANTS Google’s motion for partial summary judgment of
entitlement to safe harbor under 17 U.S.C. § 512(c) for its Blogger feature.

Interesting decision and probably the first time I've ever seen full colour Windows screenshots (including a colour photograph) incorporated in a legal judgment.