11:02 [GMT-6]

[Note: This particular entry is a bit out of order, as it jumps ahead to an issue of substance; that will eventually be corrected at Warped Weft. I still have more to say about the procedural context before delving deeply into the merits.]

One of the justifications that many apologists for Google's actions have raised is "Arriba Soft says it's fair use." This is a woeful misunderstanding of Arriba Soft, unless one willfully misreads the opinion and wrenches it completely from context. The first two paragraphs of the most-recent Ninth Circuit opinion make this clear:

This case involves the application of copyright law to the vast world of the internet and internet search engines. The plaintiff, Leslie Kelly, is a professional photographer who has copyrighted many of his images of the American West. Some of these images are located on Kelly's web site or other web sites with which Kelly has a license agreement. The defendant, Arriba Soft Corp., operates an internet search engine that displays its results in the form of small pictures rather than the more usual form of text. Arriba obtained its database of pictures by copying images from other web sites. By clicking on one of these small pictures, called "thumbnails," the user can then view a large version of that same picture within the context of the Arriba web page.

When Kelly discovered that his photographs were part of Arriba's search engine database, he brought a claim against Arriba for copyright infringement. The district court found that Kelly had established a prima facie case of copyright infringement based on Arriba's unauthorized reproduction and display of Kelly's works, but that this reproduction and display constituted a non-infringing "fair use" under Section 107 of the Copyright Act. Kelly appeals that decision, and we affirm in part and reverse in part. The creation and use of the thumbnails in the search engine is a fair use. However, the district court should not have decided whether the display of the larger image is a violation of Kelly's exclusive right to publicly display his works. Thus, we remand for further proceedings consistent with this opinion.

Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003) (emphasis added). This is the first hint that the matter concerns more than indexing. In the context of reproduction of visual images already in electronic form—a distinction that is quite significant, as we'll see later in looking at the merits of Author's Guild v. Google itself¹—the Court held that the District Court's judgment of fair use was inappropriate.

As mentioned above, the district court granted summary judgment to Arriba as to the full-size images as well. How-ever, because the court broadened the scope of both the parties' motions for partial summary judgment and Arriba's concession on the prima facie case, we must reverse this portion of the court's opinion.

With limited exceptions that do not apply here, a district court may not grant summary judgment on a claim when the party has not requested it. The parties did not move for summary judgment as to copyright infringement of the full-size images. Further, Arriba had no opportunity to contest the prima facie case for infringement as to the full-size images. Accordingly, we reverse this portion of the district court's opinion and remand for further proceedings.

(footnotes omitted) Sure, this is a procedural reason only; however, the third fair-use factor analysis indicates that a more-completely developed record would weigh against finding fair use as to the complete works.

This factor neither weighs for nor against either party because, although Arriba did copy each of Kelly's images as a whole, it was reasonable to do so in light of Arriba's use of the images. It was necessary for Arriba to copy the entire image to allow users to recognize the image and decide whether to pursue more information about the image or the originating web site. If Arriba only copied part of the image, it would be more difficult to identify it, thereby reducing the usefulness of the visual search engine.

Ah. Here we are. What this really reduces to is this question, which is both far more complex than the question raised in Arriba Soft and deceptively simple:

Is it necessary to copy the entirety of a textual work to "allow users to recognize the [work] and decide whether to pursue more information about the [work]"?

This is deceptively simple because it divides the inquiry into two aspects: "recognition" and "pursuit of more information". I think the conjunctive linking of these two concepts is probably an artifact of legal writing more than it is a logical necessity, which will bear analysis later. The problem, though, is that this specific statement has been shorthanded into the concept of an "index"—a shorthand that professional index-preparers would deny, and a conclusion inconsistent with Second Circuit law.²

The culture clash of imposing "Internet values" on print publications results from some seriously flawed reasoning in the Copyright Act itself—flaws inherited from the 1870 revision and 1909 Act—that could have been avoided just by reference to the piano-roll case³ and its implications. The question this raises is also deceptively simple:

Must changes in technological capabilities and/or penetration always result in changes in both copyright owners' rights and copyright users'/exploiters' responsibilities?

Contrary to most analyses of Arriba Soft, which try to make the Internet somehow a "privileged" medium, the answer to this question is "no." Those changes under some circumstances may result in some changes; but reaching the result desired by Google requires that this question be a black-and-white imperative, not analysis sensitive to the context of not just the desired reuse, but the actual origin. That, in turn, distinguishes the "index" that Arriba Soft created from that Google would create; but this posting has already beaten that horse into a pulp.⁴

1. The short-form, unnuanced distinction is that Kelly himself had made the images available in some form on the Internet—that is, in the indexing and indexed medium—through his own efforts and/or the authorized (or at least acquiesced-in) actions of his licensees. That is not at all what Google's stated intent is, let alone what Google is actually doing… or could choose to do at a later date given the copying it is actually doing. Cf. Ellison v. Robertson, 189 F. Supp. 2d 1051, 1057–60 (C.D. Cal. 2002), aff'd in relevant part and rev'd in part, 357 F.3d 1072 (9th Cir. 2004).
2. Cf. Castle Rock Entertainment, Inc. v. Carol Publ. Group, 150 F.3d 132 (2d Cir. 1998) (denying that wholesale copying of script excerpts and rearranging them for purpose of creating a "quiz" constituted fair use). Remember, Author's Guild v. Google will be heard in the Second Circuit and must rely upon Second Circuit law. This particular line of cases marks one of the sharpest divergences between Second Circuit and Ninth Circuit law. The Second Circuit narrowly has the better of this particular argument, although the turgid writing in three of the critical opinions makes understanding this needlessly difficult. As noted previously, this is one of the best arguments for sending copyright matters to the Federal Circuit: It may not always get the results correct, but at least it will be consistent!
3. White-Smith Music Publ. Co. v. Apollo Co., 209 U.S. 1 (1908).
4. Needless to say, I find most fair-use analyses—particularly that put forth by counsel for EFF—of some skewed (and usually self-serving) vision of what is going on in the GooglePrint program to be at best disingenuous; more details will follow later on.