Microsoft's Bing playing fast and loose with fair use?

Microsoft's Bing playing fast and loose with fair use?

Summary: Microsoft's new Bing Search engine displays full length thumbnail videos -- with sound, stripped of ads. This appears to be the broadest "universal video search" yet, and may exceed the recognized bounds of fair use.

TOPICS: Legal, Microsoft

Beet.TV's Andy Plesser asks: is Microsoft's Bing search playing fast and loose with fair use? Specifically, Andy points out that Bing displays "live," or perhaps more accurately "dynamic," thumbnails in its video search results, and users can "watch the entire video an extended excerpt [see below] as a thumbnail, with sound." Andy notes Bing "appears to pull a media RSS feed which is stripped of advertising overlays," but "does provide a link to the original source." "This is the broadest implementation of 'universal video search' by a major company we have seen," he says.

Since 2002 it has been pretty well accepted in the U.S. that search engines can properly display thumbnails of images in search results under the fair use doctrine. Crucial to that result though is the fact search result thumbnails do not "supplant the need for the original" or harm the market or value of the images as used on the original site. (See the Ninth Circuit's Kelly v. Arriba Soft decision.) In fact, thumbnail images in search results were found to help the market or value of the images by

guid[ing] users to [the site] rather than away from it. Even if users were more interested in the image itself rather than the information on the page, they would still have to go to [the] site to see the full-sized image. (Kelly)

Bing presents an interesting twist on this, and the question is: is displaying a thumbnail rather than full-sized video enough to trigger fair use? Here, I think the argument is stronger than in Kelly that the need for the original is supplanted. Full length Lengthy [see below] thumbnail videos with sound strike me as more likely to serve as a complete substitute for the original than a thumbnail image, and if I'm right, fewer users would be guided to the original site by the search engine (in fact, they'd be discouraged from clicking through). The thumbnails also impair the value of the original by removing the originally included ads.

On the other hand, Bing's video search could be fair use if the videos are embedded and/or inline linked rather than copied. (That doesn't sound like what's going on, particularly given the ad removal, but I need more info.)

I'd be curious to hear more from others, including Fred von Lohmann at EFF, about Bing's video search and fair use.

[Update, 2:30 p.m.] As TechCrunch pointed out yesterday, Bing puts users two clicks away from a whole lot of video porn, again with the thumbnail/full video/full sound scenario (though I didn't do an extensive survey, the couple of thumbnails I clicked through required you to click further to "play the [full size — no tittering now] video at the original site" rather than staying on Bing). Adult entertainment producers can be among the most strident objectors to search engines hurdling their paywalls and providing access to their otherwise for-pay content, as we learned a few years back in the Perfect 10 v. Google litigation. Perfect 10 involved still images only, and Google won, as Jason Schultz describes here. Bing's porn thumbnails are significantly more....enhanced. 'Scuse me while I reinstate safe search before my kid wanders in.

[Update, 3:36 p.m.] As noted in the comments here and in an update to Andy Plesser's original post, it's not yet clear exactly how much of each video gets played in the thumbnails, and whether this varies from video to video or source to source. From what I've seen of the thumbnails they play enough of the original to prompt obvious fair use concerns.

Topics: Legal, Microsoft

Denise Howell

About Denise Howell

Denise Howell is an appellate, intellectual property and technology lawyer who enjoys broad industry recognition for her expertise on the intersection of emerging technologies and law.

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  • Full Length?

    It only plays revolving 5-10 sec clips for me. It's my fav. feature.
    • Ooops

      I see what you mean. I had just been looking at the thumbnails from the search window.
      • It's the thumbnails that concern me

        Some appear to run the full video, not just a clip.
        Denise Howell
        • I think ...

          ... it safe to say that any advertizing overlays that were shrunk down to thumbnail size would be so unrecognizable as to become meaningless.
        • I think the opposite

          I think that, if anything, looks like a concerted effort to stay within fairuse use, and avoid contreversy.

          Had there not been most clips, shrunken video, and small thumbnails, then I would have shown concern.

          But it looks like there was much effort to avoid this issue. And legally, thats the most we can ask for. No one can attain perfection, but its the effort that its legally looked for, in this example anyway.

          At least that's what the fair use doctrine seems to me.
        • There really concerned with thumbnails?

  • It is good and fast , too.

    Nice search tool ; some new some Google.
  • CLE?

    Let's see 'em try it with CLE (Continuing Legal Education) videos and other presentations that are in video format but where the valuable content is almost 100% in the audio.
  • RE: Microsoft's Bing playing fast and loose with fair use?

    Denise -- my bad! Turns out the videos are extended excerpts, not the whole thing so it probably is within fair use. I've amended my post. Apologies, Andy
    • Just noted, thanks

      I'm still not clear if there's a hard and fast rule on this or it varies. It seemed like I was seeing more of your vids than of Hulu's, for example.
      Denise Howell
    • Updated too

      I got your earlier comment, etc., thanks Andy, and updated as well.
      Denise Howell
  • Un-necessary bashing of Microsoft

    Common guys! Try "porn" or "sex" or anything kinky on Bing, or Bing Video, and you would see a clear disclaimer on your screen before it returns any result.

    What else do you expect?? Try this on Google and you could see nude images right on the first page. Is Google still better??

    I guess this is un-necessarybashing Microsoft is getting due to its past mis-adventures.
    • Just 2 clicks

      Any child is just 2 clicks away from viewing porn video on Bing
      search results page.
      • And it's the responsibility of Microsoft...

        ...(or any other search engine for that matter) to assume that any searcher is under the age of consent or is it the PARENTS responsibility to ensure that age appropriate filters are in place?

        Last time I checked, Google wasn't appointed the nanny and I was able to browse porn just by typing in the appropriate search using the default settings.

        Microsoft provides a service. It's up to the adults in any home to make sure the service is set correctly to filter out what they feel is inappropriate for the younger people living in that home.

        The same for businesses.

        And that's the tricky part, what you may feel is inappopriate may not be inappropraite to others. Nanny your own family/business, leave mine alone.
        • Parents are responsible...

          Bing takes it a step further and makes it much easier to view 'inappropriate' full-blown action video (with audio) just by running the curser over any of the numerous (and fairly-sizable) thumbnail images on its own search page (no need to click!). On a laptop, you just place the cursor over the image and let it go. I think its a great advancement which I'm sure other search engines will be anxious to copy (just as Microsoft copied the feature from - guess who? - porn sites!) ... nothing wrong with incorporating someone else's concepts. Of course, parents are always responsible for what goes on in the home as well as when their kids visit other homes and public access points. Besides, what a great cash opportunity for proprietary software vendors (like Microsoft) to alleviate parental fears by offering 'new' and 'improved' system-level content filters. It's a win-win for all. BTW, two clicks refers to how easy it is to remove Bing's own content filters - a cinch for any kid...

          From then on, it's NO clicks!
      • Just tried it

        I was actually 3 clicks away since I had to click "agree". It's still very disturbing at how easy it was.

        Almost every video listed gave the thumbnail and enough of the video to get a person put in jail for showing it to a child yet MS barely gives the cyber equivalent of "are you sure your daddy isn't home?"

        As for the original intent of this article, the only vids with any protection are from youtube as they require you to click on the vid before seeing them.
    • Well, given a company that claims to dislike piracy and likes DRM,


      Which doesn't get any more bald faced than that...

      Of course, with China now migrating to FreeBSD, Ballmer's probably throwing a big tantrum...
  • RE: Microsoft's Bing playing fast and loose with fair use?

    Why hasn't anyone realised, if true, how perfect a weapon we have to beat the purveyors of filth to death with. Rare opportunity indeed.
  • RE: Microsoft's Bing playing fast and loose with fair use?

    denise, i went a bit overboard on my post: the thumbnails are "real" but they are limited excerpts -- not the whole thing so this should constitute fair use. I have amended my post:
  • Children 2 clicks away from porn? What about...

    youtube. one click away. There is normally at least one if not more "Adult" videos on the youtube home page. <br>
    And how does Google make porn harder to get to?
    I don't view porn, but I don't believe it's more than 2 clicks away on Google? <br>