District Judge Scores a Perfect 10

Quick thoughts on Perfect 10 v. Google, in which a federal judge granted an injunction in favor of the porn purveyor Perfect 10 and against Google’s reproducing thumbnails of Perfect 10 images via Google’s image search engine.

First: Not only is this a preliminary injunction, but it’s a district court opinion. There is a long, long road ahead in this case. Google has won some search-related cases, too.

Second: I don’t think that it’s a big deal that the plaintiff here is a porn company, and I don’t read the judge as saying — even implicitly — that the plaintiff gets the injunction because the photos are more commercially valuable than Les Kelly’s photos are. I read the judge as concluding that the public interest in having free access to Perfect 10’s photos is less than the public interest in having access to Les Kelly’s photos. In other words, Perfect 10 has done more than Les Kelly did to make the photos into mere commodities, but precisely for that reason there is no reason to make them more widely available than they already are.

Third: Where’s the implied license argument? In Field v. Google, a case that involved caching by Google, the court granted Google’s summary judgment motion on the basis of an implied license defense:

According to the undisputed testimony of Google’s Internet expert, Dr. John Levine,
Web site publishers typically communicate their permissions to Internet search engines (such as
Google) using “meta-tags.” A Web site publisher can instruct a search engine not to cache the
publisher’s Web site by using a “no-archive” meta-tag. According to Dr. Levine, the “noarchive”
meta-tag is a highly publicized and well-known industry standard. Levine Report
¶¶ 33-37. Field concedes he was aware of these industry standard mechanisms, and knew that
the presence of a “no archive” meta-tag on the pages of his Web site would have informed
Google not to display “Cached” links to his pages. Despite this knowledge, Field chose not to
include the no-archive meta-tag on the pages of his site. He did so, knowing that Google would
interpret the absence of the meta-tag as permission to allow access to the pages via “Cached”
links. Thus, with knowledge of how Google would use the copyrighted works he placed on
those pages, and with knowledge that he could prevent such use, Field instead made a conscious
decision to permit it. His conduct is reasonably interpreted as the grant of a license to Google for
that use. See, e.g., Keane, 968 F. Supp. at 947 (copyright owner’s knowledge of defendant’s use
coupled with owner’s silence constituted an implied license); See also Levine Report ¶37
(providing the undisputed expert opinion that Google reasonably interpreted absence of metatags
as permission to present “Cached’ links to the pages of Field’s site). Accordingly, the Court
grants Google’s motion that it is entitled to the defense of implied license, and denies Field’s
cross-motion that the defense is inapplicable.

I think that Google has a more than colorable claim that the same logic applies here. Maybe we’ll see the argument on summary judgment.