Be Careful About Turning Image Search Into An Antitrust Complaint

from the it-might-just-backfire dept

Have you ever used the internet to search for photos of a potential vacation spot? Or perhaps you've Googled some pictures of furniture you wanted to buy? Who hasn't, right?

But if Getty Images gets its way, you may have far fewer viewing options. That's because Getty recently wrote a letter to the Senate Judiciary Committee urging its members to turn a failed copyright claim into an antitrust issue.

Getty's main contention -- not antitrust-related at all -- is that internet-search results display images without authorization from the copyright holder, and thus infringe copyright. But the courts haven't agreed.

One reason we have the internet is that the Supreme Court back in 1984 held that making a home recording of a movie for personal playback without prior authorization is a "fair use" under the copyright law.

When the internet came into being, this consumer "fair use" determination opened the door of the internet to consumers, rather than limiting it to businesses and government exchanging data among themselves.

The courts ruled that consumers could also participate by searching for text and images. What this meant for online images and Google's search engine was decided 10 years ago in the court of appeals copyright case Perfect 10 v. Amazon. In that case, image search and display as carried out by Google was determined to be not infringing.

Getty's letter complains about enhancements that Google made back in 2013, to better allow consumers to compare the images in their search results. The letter claims that it is "anti-competitive" for Google now to allow users to inspect a variety of images more closely, to choose the best one, while the high-resolution images themselves remain only on the provider's -- not Google's -- site. (Would they have complained if Google had downloaded and offered these itself? Of course.)

A proprietor might consider this option to compare as "anti-competitive," but for a consumer, comparison is the essence of competition.

The evolution of image search reflects a better understanding of what users want and an effort to give it to them. Google, Yahoo and Bing's search engines all use a variety of signals to determine relevant and useful search results, including images. Dumbing down search is a bad deal for consumers, and is neither required by nor consistent with sound competition policy. And even though these searches are lawful, Google and other search engines provide a simple tool to opt any image out of search. Getty's letter acknowledges, but dismisses, this fact -- because as everyone knows, it is image search that drives business to Getty and its competitors.

Getty is a major player in its field, and its image collection is even bigger after recently locking up more content in the stock-photo market through an exclusive licensing deal with Corbis, once a rival stock-image company. But concern about new entrants (such as Adobe) is classic incumbent behavior, especially when threatened by innovation. (Google does not compete in the stock-photo market, and is not a rival player in this area.)

Search drives traffic to all photography websites, not just Getty's. Making search work better for users and creators is not a violation of copyright law, and we should be very cautious before we start claiming that facilitating competitive search is an antitrust violation.

Gary Shapiro is president and CEO of the Consumer Technology Association (CTA), the U.S. trade association representing more than 2,200 consumer technology companies, and author of the New York Times best-selling books, Ninja Innovation: The Ten Killer Strategies of the World's Most Successful Businesses and The Comeback: How Innovation Will Restore the American Dream. His views are his own. Connect with him on Twitter: @GaryShapiro

Filed Under: antitrust, copyright, fair use, image search, images
Companies: getty, getty images, google