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Strip Search

Is Google Inc. responsible when people use its search engine to find copyrighted photos?

Norman Zada thinks so.

Zada contends in a lawsuit that his Beverly Hills publishing company, Perfect 10 Inc., suffers whenever someone accesses a photo of one of Perfect 10’s nude models through Google’s free search feature rather than Zada’s $25.50-a-month Web site.

The case could have important implications for Mountain View-based Google, which become an Internet giant by offering an easy search feature that locates 8 billion Web sites. But Zada argues that much of that growth is the result of people seeking free pornography. Google profits from advertising, which is tied to the number of users visiting the site.

In an Aug. 24 motion for preliminary injunction filed in U.S. District Court in Los Angeles, Perfect 10 has asked that Google stop linking to other Web sites that display copyrighted Perfect 10 images. Perfect 10 and Google have agreed to an Oct. 31 hearing date on the preliminary junction, but the date must be confirmed by the court, said Daniel Cooper, a lawyer for Perfect 10.

Zada has broader goals: to shut down Google’s image search feature, which does not distinguish between copyrighted and public-domain images, and to make Google liable for copyright infringements enabled by its search engine.

Google did not make executives available for an interview, but Associate General Counsel Nicole Wong said in an e-mail that a 2001 case established that a search engine may display miniaturized images without violating copyrights. Google’s image search function displays smaller versions of images culled from other sites (and notes that the images are subject to copyright).

“If directing users to other sites that contain the relevant information is per se copyright infringement, then all search engines would necessarily be infringing,” Wong wrote. “In the U.S., the Congress enacted the Digital Millennium Copyright Act which explicitly protects search engines from liability for copyright infringement when they point to infringing material on other sites, provided that they remove such sites when they are provided with notice of the existence of those sites.”

Jason Schultz, a staff attorney for the Electronic Frontier Foundation, a San Francisco non-profit organization devoted to Internet free speech, said “the implications of this lawsuit could be detrimental to everyone who uses the Internet, not just Google. The risks are just too high that someone, somehow will find something that’s illegal and sue and try to shut them down.”

Perfect 10 is not suing Yahoo Inc., although Zada believes that company also abets copyright infringements. (He said he’s already spent $13 million on legal fees and can take on only so many adversaries at once.) Perfect 10 is also suing Amazon.com Inc., which runs a search engine, A9.com, that uses technology similar to Google’s. Representatives for Amazon.com did not return messages.

Perfect 10 has 2,000 members paying $25.50 a month, which covers the cost of operating the business, paying the models and hosting the Web site, Zada said. (Perfect 10 also publishes a glossy print magazine using some of the same models and pictures.)

Google alone retrieves about 4,500 Perfect 10 images and displays them at no cost, he said. “The bottom line is that Google is no longer a search engine,” Zada said. “They’re basically a giant adult entertainment site that is misappropriating copyrighted images and putting them out there for free and making a tremendous profit off of them.”

Many search engines also display copyrighted images from Perfect 10 and other paid Web sites, either by directing users to third-party sites that display the images in violation of copyright laws, or by showing the images directly in the search results. Google’s image search does both.

Google insists that it removes copyrighted images from its search results when informed of violations. But Zada said Perfect 10 has served Google with 54 notices that the search engine has abetted copyright infringements, yet the images and links have not been taken down. Google would not comment on that specific allegation.

Zada said Google should employ technology to filter out copyright violators. Google and its defenders argue that would be impractical.

Google has drawn legal threats and suits from other Internet content providers. In March it agreed to remove content from Agence France Presse after the France-based news service sued Google in U.S. federal court, alleging that Google was freely distributing for-pay news stories and photos.

Ultimately, lawsuits like Perfect 10’s may be more of a nuisance to Google than a serious threat to the bottom line, according to Rick Summer, an analyst with Morningstar Inc.

“Our view is that better technology will ultimately be able to solve these problems,” Summer said. “You could argue that Google has a big bullseye on its back right now.”


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