Professor Eric Goldman has a post up at his Technology & Marketing Law Blog with an important update on Perfect 10 v. Amazon.com, which I blogged about last May. Specifically, the Ninth Circuit issued an amended opinion Monday that reverses itself on the issue of which party has the burden of proof on a fair use defense in a copyright preliminary injunction context. As Professor Goldman sums up:
In the original Ninth Circuit Perfect 10 v. Amazon ruling, the court put the burden on the plaintiff to disprove fair use as part of its PI obligations. Now, in an amended opinion, the Ninth Circuit has put the burden on the defendant to establish fair use to defeat the PI.
This doesn’t change the result. The injunction is still dissolved.
Professor Goldman’s post is well worth reading for anyone at all interested in cyber law. He explains how this is a continuation of the Ninth Circuit’s struggles with cyber law, that the significance of the issue extends beyond cyberspace, how the press gets the case wrong (shock!), and conveniently excerpts the relevant language from the original and amended opinions.
If you want more, go get the original opinion and the amended opinion.
The Fair Use Blog should be a regular destination for any attorney interested in copyright law. This post tips us off to an amazing article by Professor Barton Beebe of the Benjamin N. Cardozo School of Law, Yeshiva University: An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005.
Professor Beebe provides detailed statistical analysis. From the summary on his website:
This Article presents the results of the first empirical study of our fair use case law to show that much of our conventional wisdom about that case law is wrong. Working from a data set consisting of all reported federal opinions that made substantial use of the Section 107 four-factor test for fair use through 2005, the Article shows which factors and subfactors actually drive the outcome of the fair use test in practice, how the fair use factors interact, how courts inflect certain individual factors, and the extent to which judges stampede the factor outcomes to conform to the overall test outcome.
Though it will not be published until later this year, it is available from the professor’s website now.
Perfect 10 publishes photographs of nude women and owns the copyrights in those images. Google displays thumbnails of those images in its image search results. Perfect 10 says this is infringement and obtains a preliminary injunction against the practice, but the Ninth Circuit, in Perfect 10, Inc. v. Amazon.com, Inc., case no. 06-55405 (May 16, 2007), reverses.
The most written about aspect of the decision is the court’s finding that Google’s display of thumbnail images in its image search results constitutes a non-infringing “fair use” of the images. Since Perfect 10 failed to show that it was likely to overcome Google’s fair use defense, the court reverses the grant of preliminary inunction.
Kevin O’Keefe of Lexblog says that the decision is “[f]urther evidence that Google is rewriting American copyright law (not saying good or bad).” It certainly gathered some attention, with bloggers writing about the case at How Appealing, Appealing in Nevada, and Decision of the Day.
Professor Orin Kerr at The Volokh Conspiracy calls it “Another Clash Between Virtual And Physical Perspectives in Internet Law,” and I agree that is one of the more interesting aspects of the case. I also think the decision does a very good job of distinguishing between the virtual and physical display of an image. Professor Kerr’s post links to a law review article of his on this issue of perspective.
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