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

If feature creep goes so far that you wind up in front of the Supreme Court, you've got too many features.
Written by David Gewirtz, Senior Contributing Editor

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.

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