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

France Passes Copyright Law Demanding Royalties For Every Image Search Engines Index Online

from the that'll-work-out-just-fine dept

The Disruptive Competition Project is detailing yet another bad copyright law change in Europe -- France, in particular, this time. Called the Freedom of Creation Act, it actually passed a few months ago, but people are just beginning to understand and comprehend the full horror of what's happening. Basically, it will now require any site that indexes images on the internet (i.e., any image search engine) to pay royalties for each image to a collection society.

How would this work? When an image is published online, the reproduction right and the right of communication to the public of this image shall be transferred to one or more collecting societies appointed by the French government. Online communication services “reproducing and communicating to the public images for search and indexing purposes” shall have to obtain a license from those collecting societies to index images legally. The license fee will either be based on the revenue accruing from the exploitation of the service or be a lump sum fee.

Of course, this makes no sense. In the US, thankfully, multiple cases on things like Google Images have found that indexing the images and showing thumbnails is clearly fair use. But that's not how it's going to work in France.

This seems particularly pointless on any number of levels. First, image search engines aren't "publishing" any works, they're just indexing what's already online and showing people where those images are. Second, if people creating works don't want them indexed they can just use robots.txt. And, yes, someone else might post those images elsewhere, but that's no reason to blame and charge a search engine. But the bigger issue, honestly, is that it's hard to see how this sort of system actually helps content creators at all. Does anyone honestly believe that the money this collection society collects will go to the people who created the indexed images? Remember, copyright collection societies have a very long and very detailed history of abuse and corruption. They collect lots of money, but they're not so great about paying it back out. And, as the Disruptive Competition Project points out, this is particularly problematic in this case, where both jurisdictional questions and just basic logistics make it almost impossible for the collection society to accurately distribute funds:

Moreover, the territorial scope of this measure is unclear. Are the rights of reproduction and communication to the public transferred to a collecting society when an image is published on a French website or on any website? Is the measure based on the nationality of the works? In practice, this measure may claim ownership of the billions of pictures uploaded everyday globally – even though the huge majority of those pictures are published today for personal use by the close-to-3-billion smartphones’ owners, not expecting any revenue. It is also worth noting that a sizable number of those pictures is published under a Creative Commons license that usually refuse remuneration in return, for example, for attribution. Therefore, this measure would override the choice made by users publishing under such a license – and more generally, would deprive rightsholders of the choice between licensing their pictures or not.

Even worse, there is no realistic way for collecting societies to redistribute the revenues from the license fees accurately and fairly to billions of rightsholders all over the world. The relevant collecting societies won’t attempt to contact all French rightsholders (when close to 70% of French citizens above 15 years old have a smartphone!), let alone all global rightsholders. In practice, the money will be split between the relevant collecting societies and the few rightsholders affiliated to those societies, who – as we say in France – won the “Jackpot”.

It will be worth following to see how this plays out. If France does follow through and a collection society actually goes after Google, it does make me wonder if Google might pull out the nuclear option yet again and shut down Google Images in France as it did with Google News in Spain, when the Spanish government passed a similar tax on news aggregation.

Once again, like so many of these laws, this seems to not be so much about copyright as it is about taxing Google.

Filed Under: copyright, france, image search, images
Companies: google

George W. Bush Used Top Google Results For All His Paintings; Will He Be Sued For Copyright Infringement?

from the w-is-an-appropriation-artist dept

You may have heard the recent stories about former President George W. Bush's new exhibit of paintings of world leaders. There's been plenty of chatter about the former President picking up painting as a hobby since leaving office. While many may have assumed that he used his experience in meeting with those world leaders in order to have an accurate representation of what they looked like, the truth is that he just pulled results from Google Image search result for each one. Literally. Some people have gone through and done Google Image searches on each of the subjects he painted, and discovered that the paintings were clearly all based on either the very first result, or very near the top search result. Yes, that's right. George W. Bush is an appropriation artist.

Many of those images are from Wikipedia, where they're under Creative Commons licensing, but others are clearly covered by copyright. As Animal New York notes, the image of former French President Jacques Chirac comes from a photo of the cover of Chirac's book cover, where the copyright on the photo is actually held by the Associated Press. The Animal New York article is probably correct that it's unlikely that the Associated Press will go after the former President for copyright infringement, but only because it's hypocritical. In the past, the Associated Press did, in fact, sue Shepard Fairey over his iconic image of President Obama, that was also based on an AP photo. Fairey (stupidly) did himself in by trying to destroy evidence and then lie about it, seriously harming his case, and distracting from the central question of whether or not his image was fair use. But, the AP has sued others over that image as well, so you never know.

While the chances are minimal, it certainly would be interesting to have a case in which, of all people, George W. Bush, becomes the poster child for fair use.

Filed Under: appropriation art, copyright, george w. bush, image search, paintings, photographs, shepard fairey
Companies: associated press

German Court Says Google Image Search Doesn't Infringe On Copyrights

from the well,-phew dept

Over in Germany, a court has ruled that Google does not infringe on the copyright for images when it displays thumbnails of those images in its image search. This is, obviously, quite a good ruling. If it had gone the other way, it would have effectively killed Google's image search. While there are some similarities to the court rulings against Perfect 10 (who has sued various search engines for displaying thumbnails) in the US, there is one major difference. With Perfect 10, the complaints were mainly about search engines indexing images copied/scanned by others. In this German case, the artist was upset that Google showed images that she, herself, put on the website. It seems that this particular point made a strong impression on the judge, who noted that "The plaintiff made the content of her site available without using technical tools to block search engines from finding and displaying her works," and because of that, Google "was allowed to interpret the plaintiff's behavior as agreeing to use her works in image searches." Always nice to see a reasonable ruling.

Filed Under: germany, image search, thumbnails
Companies: google

Singapore Firm Claims Patent On Hyperlinked Images

from the oh-please dept

Ah silly patents. Remember back when British Telecom thought that it held a patent on hyperlinks? And then there've been multiple different patents claiming ownership of the idea of putting an image on a website. Well, it appears that a company in Singapore has recently merged the two ideas into its own patent, and boy, is it ever ready to sue just about everyone. Slashdot points us to the news that Singaporean image search firm Vuestar Technologies claims to hold a patent on linking images from a website to another site and is sending out threatening letters to a bunch of websites. No one has linked to the actual patent so it's difficult to see what it really covers -- but the idea that a recent patent would cover the concept of linking images seems preposterous.

Filed Under: hyperlinks, image search, images, patents, singapore
Companies: vuestar technologies