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Online Exclusive: Is the Google Ruling a Perfect 10?

When the U.S. District Court issued a preliminary injunction in the case of Perfect 10 v. Google Inc., et al, many in the Internet profession declared it a tremendous blow to Google.

Though the ramifications could be far-reaching, it’s important to put into perspective the fact that a preliminary injunction has a different burden of proof than the underlying case will have. Though Perfect 10 was able to show “likelihood of success” on the merits of the case, one can only presume Google’s defense team will become the veritable all-star team of the legal world.

There is certainly merit to the argument that Google is displaying copyrighted material (thumbnail photos indexed from Web sites that hold the copyrights to those images), but it would seem a valid legal argument can be made that the Web site owners gave effective consent for Google and similar companies to display a thumbnail version of the images with the copyright warning attached to it.

If the owner of a Web site has his or her Web site submitted to the search engines, it can easily be construed as consenting to have the Web pages, content and images indexed and displayed as appropriate. Certainly, Perfect 10 cannot argue that they were unaware of this practice. Further, a company that invested more than $36 million in their brand would certainly invest in a Web developer that understands the use of robot.txt and how to block Google and other crawlers from gaining access to these restricted areas.

In order for Google or the crawlers of any company to find a Web site, the Web site owner/developer would have to actively invite such activity. By either submitting a URL to the search engines or directories, or by having links to that URL placed on other websites, the owner/developer is actively inviting Google and similar companies to search, index, cache and display their content, including images where appropriate.

Perfect 10 is likely thrilled with the free publicity it is receiving, and it makes many in the industry scratch their heads that Google’s legal team did not defend adamantly against the preliminary injunction (the court record shows the defense did not offer evidence on crucial points).

The ramifications of this case are fairly significant and the entire industry will wait to see a final ruling which will likely be appealed by the losing party. With the ability to protect copyrighted material to be as easy as a command line in a robot.txt file it seems curious that this case even went as far as it did. Perfect 10 would likely have a strong suit against their Web site developer for failing to protect their copyrighted images, however, it is a fairly safe assumption that the developers do not have the same deep pockets as Google certainly has.

As we wait for a ruling one can only hope that Google and the other SERPS will not be banned from displaying thumbnail images from the billions of Web sites that actually do know how to use robot.txt files.

Chris Winfield is president/co-founder of 10e20, New York, a global search engine marketing company. Contact him at 718/309-4397 or [email protected]

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