Is Google being evil and stealing your Web pages with Google Preview?

Is Google being evil and stealing your Web pages with Google Preview?

Summary: If feature creep goes so far that you wind up in front of the Supreme Court, you've got too many features.

SHARE:
TOPICS: Google, Browser
74

If you're a regular Google user (and who, besides Steve Ballmer, isn't?), you've probably noticed the little magnifying glass that now appears next to search results:

While Google claims they intended this new feature to reduce unnecessary page loads, I was curious about two factors: how would it impact Web site traffic and how legal was it? Since a lot of SEO experts are discussing the traffic question, I decided to dive into the legal question.

Is it theft or is it fair use?

Fundamentally, is Google stealing your Web pages by displaying snapshots of them on their Web site?

It's an interesting question, and it goes to the legal concept of fair use. Fair use, according to Wikipedia, "allows limited use of copyrighted material without requiring permission from the rights holders."

In other words, if you want to quote this article in a school paper, it's probably not going to harm me, ZDNet, or CBS Interactive, so fair use allows you to do so.

But how does fair use apply to this Google Preview feature? Since I'm an engineer and computer scientist, not an attorney, I decided to turn to two of the brightest legal minds I know.

The first person I turned to was ZDNet's own Denise Howell, who does both the Lawgarithms blog and the this WEEK in LAW podcast. The second opinion I turned to was that of Richard Santalesa, an attorney with the Information Law Group. Richard's more than an attorney, he's been a technology editor for many years and, like Denise, is one of the few attorneys who can talk both law and tech with authority.

One disclaimer before I describe what I've learned from Denise and Rich: they are attorneys and I'm not. I'm going to do my best to properly describe what I've learned, but if anything is wrong here, it's because I got it wrong, not because these two fine legal minds made some sort of mistake.

Case law

Essentially, the preview is just a thumbnail, much like the thumbnails displayed in image search. While the preview takes more pixels than a typical thumbnail, it's also representing more information.

There was a 9th Circuit case back in 2003, Kelly v. Arriba Soft Corporation, where the plaintiff sold images online and the defendant presented thumbnails of the images.

Another case in 2007 also touched on the same issue, Perfect 10 v. Google, Inc., et al.. Perfect 10 is a nudie magazine which, like most modern nudie magazines, has a Web site. Google scanned their site and provided teensy-weensy thumbnails of the Perfect 10 models on their site. So Perfect 10 sued them. Perfect 10 also sued Amazon because of its A9 search subsidiary.

In this case, too, the 9th Court ruled that thumbnails didn't violate copyright.

There's some minor argument to be made that Google's getting in the way of traffic. Google's Web page previews provide a low-resolution version of the page, where full, usable content on the site is not provided. A court, at least those in the 9th Circuit, would likely look to the Arriba and Perfect 10 cases for guidance, and conceivably conclude that use of a low-resolution page preview is a comparable "tranformative" use and therefore not infringing of any copyrights within the underlying Web page.

So, on the surface of it, Google isn't violating Fair Use and while the Preview feature might prevent some bouncing (where a user quickly visits a page, realizes it's not what she wants, and leaves), which would reduce the number of impressions recorded by writers and advertisers, it's not likely to be an actionable use of the likeness of Web pages.

That said, there are some issues.

First, if Google violates robots.txt or digs its way through any CAPTCHA-style gateways, it could be subject to the Digital Millennium Copyright Act (DMCA). Undoubtedly, some parties will sue Google anyway.

There's also some jurisdictional issues. None of the other federal circuit courts are bound by the 9th Circuit's opinion. If some other court decides contrary to the 9th's decision, you're looking at a whole new ball game. If the parties are big and cranky and love to pay legal fees, the entire mess could wind up in the Supreme Court.

Like I said, I'm an engineer, not a lawyer. So I'll end this with a computer scientist's perspective. If feature creep goes so far that you wind up in front of the Supreme Court, maybe you've got too many features.

Just sayin'...

Special thanks again to Denise Howell and Richard Santalesa. You can follow Denise on Twitter at @dhowell and Richard at @RichNet. Since I'm busy plugging Twitter feeds, you can also follow me at @DavidGewirtz.

Updated: Corrected some minor legal inaccuracies.

Topics: Google, Browser

About

David Gewirtz, Distinguished Lecturer at CBS Interactive, is an author, U.S. policy advisor, and computer scientist. He is featured in the History Channel special The President's Book of Secrets and is a member of the National Press Club.

Kick off your day with ZDNet's daily email newsletter. It's the freshest tech news and opinion, served hot. Get it.

Talkback

74 comments
Log in or register to join the discussion
  • RE: Is Google being evil and stealing your Web pages with Google Preview?

    I tried that preview recently and holy crap was it instantly annoying. I found it just got in my way and distracted my eyes from the actual search results to focus on a little square that wasn't readable. I'll continue sticking to Bing, but I got to admit I find a guilty pleasure in trying Google services to see how badly they muck everything up just so I can laugh at them and their office toys.

    To answer the question, it would be fair use since its public on the web. Kinda like your allowed to use 10 seconds of audio without having to pay royalties.
    Loverock Davidson
    • Question

      @Loverock Davidson Buy a bigger screen or get some glasses. I can see the previews perfectly on both my 22" monitor and a 14" CRT used in a server room.

      I understand that because M$ didn't think of it first it is a bad idea but I think it is a good idea and it has helped in my websearch, also it can be turned off very simply!

      Is there anything the Microsoft corperation can do wrong and what did you use before Bing??
      Parassassin
      • RE: Is Google being evil and stealing your Web pages with Google Preview?

        @Parassassin
        Microsoft did think of it first. :P
        Loverock Davidson
      • RE: Is Google being evil and stealing your Web pages with Google Preview?

        @Parassassin Actually Bing has been doing this since it started. So if someone goes after Google, MS was there 1st.
        ItsTheBottomLine
      • RE: Is Google being evil and stealing your Web pages with Google Preview?

        @Parassassin
        Ahem... I agree with Loverock and ItsTheBottomLine, when I first erad the article I couldn't help but compare with BING's nice preview feature that has been there for some time now.

        I used Google until I found sanity with BING, no comparison as BING has far more relevant results to my searches. Just from my experiences, Google offers a great [dis?]service to the internet community.

        I don't think this violates any laws though, it is like window shopping or browsing an eStore for a product. Some sites should be glad for the free(?) advertising. But who knows what devious potential this holds in the hands of Google, after all they are certain of what their technology is being used for, or do they? (Street View???)
        ryanstrassburg
      • RE: Is Google being evil and stealing your Web pages with Google Preview?

        Actually Lycos has been doing this long before both Google and Microsoft.
        jdewitt1
      • RE: Is Google being evil and stealing your Web pages with Google Preview?

        @Parassassin
        Google is copying Bing with this feature. Only, they did it in a stupid way. Bing has always shown you links and excerpts of the webpages in the search result. Google instead, now shows a preview of the whole page. I think the Bing way is much smarter and less intrusive.
        samofdetroit
      • RE: Is Google being evil and stealing your Web pages with Google Preview?

        @all
        Nope, you're all wrong. This WAS first available with Google via a Firefox extension several years ago before Bing was a glimmer, before people had started forgetting about MSN.

        I wanna say that Flock was incorporating the extension by default when it was released, but I'd have to fact check that.

        This is like anything else MS does. It's only new because it's new to you.
        jeverettk
    • Hardly answers the question

      @Loverock Davidson Bing's preview is text only, which isn't for everyone. If you are looking for a site you have previously visited (on a different PC) a visual key is going to be much better than seeing some text. I love the snapshot of the website, much easier that loading the site.
      Parassassin
    • RE: Is Google being evil and stealing your Web pages with Google Preview?

      @Loverock Davidson Isn't your script always to complain about anything Google related and then say you'll use Bing?
      snoop0x7b
    • RE: Is Google being evil and stealing your Web pages with Google Preview?

      "Fair use" does NOT equal "public on the web". Just because we display it publicly does not mean that we want traffic not arriving at our webpages! This goes WAY beyond simple thumbnails -- it is a visual representation (albeit small) of the entire webpage! I think that Google has a class-action lawsuit on its hands (and Bing and Cuil do as well for similar features) -- all of this is predicated on whether google has received permission to cache. If it has, then I think that any lawsuit will fail. If they have not received such permission, it is identical to the google books fiasco and Google will be paying $$$.
      zagrossadjadi
      • RE: Is Google being evil and stealing your Web pages with Google Preview?

        @zagrossadjadi Um... you think there is a case the preview making users not come to your site as a basis for a lawsuit? Stop and think about that for a minute.

        Google are providing free coverage to your site, without which any users who find you through Google may never visit your site to begin with. You're suggesting there may be a case to sue Google for the possibility that upon seeing your site's thumbnail users may be less inclined to go there? No worries, Google can just remove you from the search results, then no chance that the thumbnail will reduce the traffic they're providing for you.

        You're robbing Peter to pay Paul and getting taxed for your ignorance on the way through.
        blakjak.au
      • RE: Is Google being evil and stealing your Web pages with Google Preview?

        @zagrossadjadi What is Google doing that my browser (say using a caching proxy provided by my ISP) doesn't do?
        davids@...
    • RE: Is Google being evil and stealing your Web pages with Google Preview?

      @Loverock Davidson I can't see how the preview can be all that annoying since it doesn't show unless you click.

      You really are the worst kind of troll, aren't you?
      blakjak.au
    • RE: Is Google being evil and stealing your Web pages with Google Preview?

      @Loverock Davidson Even Microsoft employees use Google, so its okay if you do as well.
      quentinjs
    • RE: Is Google being evil and stealing your Web pages with Google Preview?

      @Loverock Davidson
      Have you ever found a Microsoft product that wasn't perfect in your eyes? Or a competitors product that you felt was equal or better? Have you ever put the vodka down long enough to give either an honest evaluation?

      Personally I prefer the "Google Preview" extension for Firefox since it loads the preview thumbnails to the left and does save me a lot of time clicking a result only to find it was a misleading link to an inferior search engine like Bing and has no real information anyway.
      ITSa341@...
    • RE: Is Google being evil and stealing your Web pages with Google Preview?

      @Loverock Davidson I can't understand how some people complain about "copyright violations". Give me a break - it's a free service, one that many users will love. It's hardly "stealing" content.
      - <a style="text-decoration: none; color: #333333;" href="http://www.irvine-attorney.com/">Riverside bankruptcy attorney</a>
      altonbeal
  • Google has always been evil

    That said, yes Google is stealing (again). It doesn't mattter much anyway since Bing is superior search engine and Facebook is suppose to come out with an email system which will no doubt be ten times better than Gmail.

    It's actually getting fun to watch Google self destruct and lose market share to Bing and FB because it'll be that much easier for Apple to kill Android.
    iPad-awan
    • RE: Is Google being evil and stealing your Web pages with Google Preview?

      @iPad-awan FB as a social tool yes, as something as personal and critical as my email, no chance!

      How long before third party app's are trawling your inbox and contacts. It will be intersting to see how long it will take for the facebook mail domain to be on every corporate block list!!

      Google mail is the most complete mail service I have ever used, even companies like the Virgin ISP use the Gmail service for their customers.
      Parassassin
      • RE: Is Google being evil and stealing your Web pages with Google Preview?

        @Parassassin "Google mail is the most complete mail service I have ever used,..." Until you want to sort a column or group data..then it pretty much sucks. And I find it about the same - with some missing features - as any other mail. That was why I was laughing about AOL - who cares. Google is basic, that's it...
        ItsTheBottomLine