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UNITED STATES COURT OF APPEALS
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FOR THE NINTH CIRCUIT
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PERFECT 10, INC.,
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PLAINTIFF,
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VS.
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AMAZON.COM, INC.,
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DEFENDANT.
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PERFECT 10, INC.,
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PLAINTIFF,
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VS.
GOOGLE, INC.,
DEFENDANT.
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CASE CV 04-9484-AHM
APPEAL 06-55405
CASE CV 04-9484-AHM
APPEAL 06-55406
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ORAL ARGUMENT HEARD BEFORE
THE HONORABLE SANDRA S. IKUTA
THE HONORABLE MICHAEL D. HAWKINS
THE HONORABLE CYNTHIA HOLCOMB HALL
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RICHARD H. CHAMBERS BUILDING
PASADENA, CALIFORNIA
WEDNESDAY, NOVEMBER 15, 2006
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PROCEEDINGS RECORDED BY ELECTRONIC SOUND RECORDING;
TRANSCRIPT PRODUCED BY TRANSCRIPTION SERVICE.
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APPEARANCES:
(CONTINUED)
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FOR PERFECT 10:
MITCHELL SILBERBERG & KNUPP
BY: RUSSELL J. FRACKMAN
ATTORNEY AT LAW
11377 W. OLYMPIC BOULEVARD
LOS ANGELES, CALIFORNIA 90064
FOR GOOGLE:
WINSTON & STRAWN
BY: ANDREW P. BRIDGES
ATTORNEY AT LAW
101 CALIFORNIA STREET
SUITE 3900
SAN FRANCISCO, CALIFORNIA
94111
TOWNSEND TOWNSEND & CREW
BY: MARK T. JANSEN
ATTORNEY AT LAW
2 EMBARCADERO CENTER
FLOOR 8
SAN FRANCISCO, CALIFORNIA
94111
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FOR AMAZON.COM:
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TRANSCRIBER:
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DOROTHY BABYKIN
COURT HOUSE SERVICES
1218 VALEBROOK PLACE
GLENDORA, CALIFORNIA
(626) 963-0566
91740
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I N D E X
USDC:
APPEALS:
CV 04-9484-AHM
06-55405, 06-55406
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PROCEEDINGS:
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ORAL ARGUMENT.
NOVEMBER 15, 2006
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PASADENA, CALIFORNIA; NOVEMBER 15, 2006
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THE HONORABLE MICHAEL HAWKINS:
EVERYBODY READY?
OKAY.
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COUNSEL.
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MR. FRACKMAN:
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I'M RUSSELL FRACKMAN.
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I WOULD LIKE TO TRY TO RESERVE ABOUT SIX OR SEVEN
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GOOD MORNING, YOUR HONOR.
I REPRESENT PERFECT 10.
MINUTES FOR REBUTTAL, IF I MAY.
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YOUR HONORS, I WOULD LIKE TO COMMENCE WITH THE
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COURT'S PERMISSION WITH WHAT WE BELIEVE TO BE THE THREE LEGAL
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ERRORS INVOLVING THE FULL-SIZE IMAGES THAT THE COURT
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COMMITTED.
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AS THE COURT KNOWS, THOSE ARE THE IMAGES WITH
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RESPECT TO WHICH THE DISTRICT COURT DENIED OUR MOTION FOR A
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PRELIMINARY INJUNCTION.
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AND WE THINK THAT THERE WERE THREE DISTINCT LEGAL
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ERRORS COMMITTED, ANY ONE OF WHICH WOULD BE DISPOSITIVE IN
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OUR FAVOR.
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THE FIRST ONE IS THE COURT'S CONSTRUCTION, OR
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FAILURE TO HEED THE LANGUAGE OF THE DISPLAY RIGHT AS IT IS
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SET FORTH IN THE COPYRIGHT ACT.
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THE SECOND ONE IS THE DISTRICT COURT'S FAILURE TO
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FIND THAT GOOGLE HAD THE ABILITY TO CONTROL ITS OWN INDEX AND
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DATABASE AND, THEREFORE, ITS FAILURE TO FIND VICARIOUS
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LIABILITY.
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AND THE THIRD ONE, YOUR HONORS, IS THE COURT'S
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FAILURE TO FIND THAT GOOGLE CONTRIBUTED IN MANY DIFFERENT
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WAYS TO THE UNDERLYING INFRINGEMENT AND, THEREFORE, THE
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DISTRICT COURT'S REFUSAL TO FIND CONTRIBUTORY INFRINGEMENT.
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SO, IF I MAY, I WOULD START FIRST WITH THE DISPLAY
RIGHT.
AND THIS IS ACTUALLY A VERY SIMPLE ARGUMENT.
THE DISTRICT COURT IN DEFINING THE DISPLAY RIGHT
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WITH ITS -- WITH HIS SERVER TEST SIMPLY IGNORED, INDEED AS WE
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POINTED OUT TO THE COURT, NEVER EVEN CITED, THE DEFINITION IN
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THE STATUTE.
THAT DEFINITION BEING:
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"TO DISPLAY IS TO SHOW A COPY EITHER
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DIRECTLY OR BY MEANS OF A FILM, SLIDE,
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TELEVISION IMAGE, OR ANY OTHER DEVICE OR
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PROCESS."
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AND AS WE POINTED OUT TO THE COURT, IT'S CLEAR FROM
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THE LEGISLATIVE HISTORY THAT WHEN CONGRESS PASSED THIS BRAND
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NEW RIGHT IN 1976, IT DID SO INTENDING IT TO BE A BROAD RIGHT
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AND INTENDING IT TO COVER ANY FUTURE TECHNOLOGIES INCLUDING,
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SPECIFICALLY, COMPUTER TECHNOLOGY.
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AND THAT DEVICE OR PROCESS, YOUR HONORS, THAT
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GOOGLE IMPLEMENTED HERE TO SHOW THE IMAGES -- INDEED, AS THE
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COURT KNOWS, INFRINGING IMAGES IS SIMPLY IN-LINE LINKING.
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AND I THINK THIS BECOMES APPARENT FROM THIS COURT'S
DEFINITION OF IN-LINE LINKING IN KELLY II.
AND IF I MAY, JUST BRIEFLY, IN-LINE -- THE COURT
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SAID AT 336 F.3D AT 816.
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"IN-LINE LINKING ALLOWS ONE TO IMPORT A
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GRAPHIC FROM A SOURCE WEBSITE AND INCORPORATE
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IT IN ONE'S OWN WEBSITE, CREATING THE
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APPEARANCE THAT THE IN-LINE LINK GRAPHIC IS
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A SEAMLESS PART OF THE SECOND WEB PAGE.
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"THE IN-LINE LINK INSTRUCTS THE USER'S
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BROWSER TO RETRIEVE THE LINKED-TO IMAGE --
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INSTRUCTS THE USER'S BROWSER TO RETRIEVE
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THE LINKED-TO IMAGE FROM THE SOURCE WEBSITE
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AND DISPLAY IT" -- THAT'S THIS COURT'S LANGUAGE --
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"ON THE USERS' SCREENS BUT DOES SO WITHOUT
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LEAVING THE LINKING DOCUMENT.
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LINKING PARTY CAN INCORPORATE THE LINKED
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IMAGE ONTO ITS OWN CONTENT."
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I WOULD SUBMIT TO THE COURT THAT THERE CANNOT BE A
THUS, THE
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CLEARER DEFINITION OF DISPLAY IN WHAT THE COURT DESCRIBED
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IN-LINE LINKING TO BE.
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YOUR HONORS, THIS IS WHERE I WAS ABOUT TO POINT TO
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MY EASEL, BUT IF I MAY, I'D JUST LIKE TO REFER THE COURT TO
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SOME EXHIBITS IN THE RECORD, WHICH I THINK DISPLAY THIS ISSUE
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CLEARLY.
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AS THE COURT KNOWS, WHEN SOMEONE -- A GOOGLE USER
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TYPES IN THE NAME OF A MODEL OR A SEARCH TERM, THUMBNAILS ARE
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RETURNED.
AND THAT'S ERG 1030.
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THAT'S WHAT THE DISTRICT COURT FOUND TO BE
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INFRINGING BECAUSE UNDER HIS BRIGHT LINE SERVER TEST GOOGLE
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WAS COPYING AND SERVING THOSE IMAGES.
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HOWEVER, WHEN ONE OF THOSE IMAGES IS CLICKED ON,
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THE USER DOES NOT GO TO THE UNDERLYING WEBSITE.
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GOES TO A SECOND PAGE ON GOOGLE, AND THAT'S ERG 942, FOR
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EXAMPLE.
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THE USER
AND HERE'S WHERE I WOULD SUBMIT TO THE COURT THERE
IS A GREAT ANOMALY THAT ILLUSTRATES THE FALLACY IN THE
DISTRICT COURT'S REASONING.
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AS THE COURT KNOWS, ON THAT SECOND PAGE AT THE VERY
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TOP THERE IS A THUMBNAIL IMAGE, THE SAME ONE THAT WAS CLICKED
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ON.
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SERVER TEST.
THAT IS AN INFRINGING DISPLAY UNDER THE DISTRICT COURT
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THE LARGE-SIZE IMAGE RIGHT UNDERNEATH IT ON THE
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SAME PAGE DISPLAYED TO THE SAME USERS AT THE SAME TIME IS NOT
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AN INFRINGING DISPLAY.
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THAT SIMPLY RUNS COUNTER TO WHAT CONGRESS INTENDED TO DO AND
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WHAT IS FULLY SUPPORTED BY THE LEGISLATIVE HISTORY THAT WE'VE
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QUOTED.
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AND I WOULD SUBMIT TO THE COURT THAT
I WOULD ALSO POINT OUT TO THE COURT THAT THAT
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SECOND PAGE ISN'T NECESSARY FOR ANY SEARCH FUNCTION.
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ONLY NECESSARY TO KEEP A USER AT GOOGLE.
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IT'S
AND THAT SECOND PAGE, IN ADDITION, FREQUENTLY, AS
IN ERG 942, HAS ADS -- THEY CALL THEM ADS BY GOOOOOGLE, WITH
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A LONG SERIES OF "O'S" -- WHICH SHOWS EXACTLY WHY GOOGLE
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WANTS TO DISPLAY THOSE IMAGES.
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THE HONORABLE SANDRA IKUTA:
MR. FRACKMAN, WHEN I
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TYPE A URL INTO NETSCAPE OR SAFARI, AND IT BRINGS ME TO A
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WEBSITE, IS THAT DISPLAYING THAT WEBSITE, MY BROWSER PROGRAM
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--
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MR. FRACKMAN:
WITH NETSCAPE, YOUR HONOR?
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THE HONORABLE IKUTA:
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MR. FRACKMAN:
RIGHT.
SOMETHING LIKE THAT.
YES, INDEED,
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IT IS.
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NAPSTER DECISION, NETSCAPE CREATED A VERY NARROW EXCEPTION TO
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DIRECT LIABILITY.
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NETSCAPE TO OUR CASE SHOWS WHY THIS IS A DISPLAY, AN
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INFRINGING DISPLAY.
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BUT NETSCAPE -- AS DISCUSSED BY THIS COURT IN THE
INDEED, WE THINK THAT A COMPARISON OF
WHAT NETSCAPE SAID IS WHEN YOU ARE A BACKBONE TO
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THE INTERNET, WHEN YOU HOOK SOMEBODY UP TO THE INTERNET, AND
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YOU DO NOT VOLITIONALLY DO ANYTHING, YOU MERELY ACCEPT AS A
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REPOSITORY ANYTHING THAT USERS SUPPLY, YOU WILL NOT BE
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COMMITTING VOLITIONAL ACTS AND, THEREFORE, OUGHT NOT TO BE
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LIABLE.
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AS NETSCAPE SAID, IF WE HOLD NETSCAPE LIABLE FOR
DOING THAT, WE HOLD THE ENTIRE INTERNET LIABLE.
THAT'S NOT WHAT GOOGLE DOES.
GOOGLE DOESN'T
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RECEIVE MATERIAL.
IT GOES OUT WITH ITS PROPRIETARY
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ALGORITHM, SEARCHES OUT THE MATERIAL, REFORMATS THE
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LARGE-SIZE IMAGES TO THE SMALL-SIZE IMAGES, INDEXES THEM,
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ORGANIZES THEM, DECIDES WHAT TO RETURN, WHEN TO RETURN, HOW
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TO RETURN IT AND, THEN, YOUR HONOR, USES THOSE IMAGES TO TAKE
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YOU TO THE SECOND PAGE ON GOOGLE.
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NETSCAPE IS NOT.
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IT IS EVERYTHING THAT
IT IS ACTING CLEARLY VOLITIONALLY.
AND I WOULD SIMPLY POINT THE COURT AGAIN TO THE
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DEFINITION OF IN-LINE LINKING THAT I READ TO THE COURT.
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THAT'S NOT A DEFINITION OR A DESCRIPTION OF VOLITIONAL
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CONDUCT, THEN, I'M NOT SURE WHAT WOULD BE IN THIS CONTEXT.
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IF
SO, I THINK THE NETSCAPE DECISION ACTUALLY SUPPORTS
US BECAUSE IT SHOWS WHAT WOULD NOT BE VOLITIONAL.
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IF GOOGLE, FOR EXAMPLE, ACCEPTED IMAGES FROM USERS
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-- I'M SORRY -- FROM WEBSITES WHO WANTED TO BE INDEXED IN
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THEIR IMAGE SEARCH, JUST THE WAY THEY DO FOR THEIR VIDEO OR
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CLAIM TO DO FOR THEIR VIDEO SEARCH, THAT WOULD BE SOMETHING
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DIFFERENT.
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BUT THEY DON'T DO THAT.
THEY GO OUT, AND THEY GET
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IMAGES.
AND WHAT THEY'RE GETTING, BY THE WAY, YOUR HONOR,
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ARE NOT IMAGES THAT -- FROM OUR CLIENT.
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USERS TO OUR CLIENT.
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INFRINGING WEBSITES LOCATED THROUGHOUT THE WORLD THAT WOULD
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NOT HAVE THE OPPORTUNITY TO BE VIEWED BY MILLIONS AND
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MILLIONS OF USERS WITHOUT GOOGLE'S AFFIRMATIVE ACTIONS IN
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DOING SO -- WHICH BRINGS ME ACTUALLY TO MY SECOND POINT,
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WHICH IS THE SECONDARY LIABILITY POINT.
THEY DON'T DIRECT
THEY'RE GETTING INFRINGING IMAGES FROM
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IF THE COURT AGREES WITH US ON DIRECT LIABILITY,
THEN, IT NEED NOT REACH, OF COURSE, SECONDARY LIABILITY.
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HOWEVER, I'D LIKE TO POINT OUT VERY BRIEFLY THE
DISTRICT COURT'S ERRORS IN THAT REGARD.
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AS THE COURT KNOWS, THE DISTRICT COURT FOUND THAT
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THERE WAS AS TO VICARIOUS LIABILITY A CLEAR FINANCIAL
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BENEFIT.
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SO, THE ISSUE REALLY IS CONTROL.
THE COURT WENT WRONG BY BELIEVING THAT WHAT GOOGLE HAD TO
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CONTROL WAS THE ENTIRE INTERNET.
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THAT, OF COURSE, IS AN IMPOSSIBILITY.
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IMPOSSIBLE UNDER THESE CIRCUMSTANCES.
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AND HERE'S WHERE
WE NEVER ASKED FOR THAT.
IT MAKES LIABILITY
WHAT WE ASKED GOOGLE TO DO IS EXACTLY WHAT THIS
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COURT ASKED NAPSTER TO DO.
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INDEX AND ITS OWN DATABASE.
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INTERNET TO STOP COMMITTING INFRINGEMENT.
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GO TO THEIR OWN INDEX AND DELETE INFRINGING IMAGES BEFORE
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THEY ARE SHOWN.
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TO THEIR OWN CRAWLER AND PROGRAM IT SO IT DOESN'T CRAWL THOSE
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INFRINGING WEBSITES AGAIN.
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AND THAT IS TO CONTROL ITS OWN
THEY DON'T HAVE TO GO OUT ON THE
THEY JUST HAVE TO
THEY JUST HAVE TO GO TO THEIR OWN INDEX AND
THAT'S EXACTLY WHAT THIS COURT SAID IN NAPSTER AT,
AMONG OTHER PLACES, PAGE 1023:
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"THE ABILITY TO BLOCK INFRINGER'S ACCESS
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TO A PARTICULAR ENVIRONMENT FOR ANY
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REASON WHATSOEVER IS EVIDENCE OF THE RIGHT
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AND ABILITY TO SUPERVISE," CITING THIS COURT'S
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OPINION IN FONOVISA, THE TWO MAIN CASES ON SECONDARY
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LIABILITY.
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THE PREMISES THAT WE'RE TALKING ABOUT ARE GOOGLE'S
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PREMISES.
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WE'VE CITED THIS TO THE COURT -- THAT THEY HAVE THE ABILITY
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TO CONTROL THAT.
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IT'S GOOGLE'S INDEX.
AND THEY HAVE ADMITTED --
IN FACT, THAT'S THEIR BUSINESS.
THE HONORABLE SANDRA IKUTA:
WOULD THE D.M.C.A.
PROVIDE GOOGLE WITH A SAFE HARBOR FOR THIS -- AGAINST THIS
SECONDARY LIABILITY?
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MR. FRACKMAN:
WE BELIEVE NOT.
OF COURSE, THE
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DISTRICT COURT DID NOT REACH THAT ISSUE, AS YOUR HONOR KNOWS,
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BECAUSE FINDING NO LIABILITY, IT HAD NO REASON TO REACH THAT
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ISSUE.
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BUT WE BELIEVE AS A MATTER OF LAW, AND BASED ON THE
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RECORD HERE, THE D.M.C.A. WOULD NOT PROVIDE GOOGLE A DEFENSE
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FOR A VARIETY OF REASONS.
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GOOGLE, AS YOUR HONOR KNOWS, INVOKED ONLY SECTION
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512(D), THE SEARCH ENGINE SAFE HARBOR.
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TOOL IT'S CALLED.
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INFORMATION LOCATION
BUT, HERE, YOUR HONOR, THERE'S NO SEARCH FUNCTION
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BEING PERFORMED.
THE FUNCTIONS UNDER THE D.M.C.A., AS YOUR
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HONOR KNOWS, HAVE TO BE CONSIDERED SEPARATELY AND
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INDEPENDENTLY.
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DOES, THE THUMBNAILS, THOSE TAKE YOU, AS I POINTED OUT TO THE
IF YOU LOOK AT THE FIRST PAGE OF WHAT GOOGLE
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COURT, TO A SECOND PAGE.
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UNDERLYING WEBSITE.
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THEY DON'T TAKE YOU TO AN
THEY TAKE YOU BACK TO GOOGLE.
THE SECOND PAGE SERVES NO SEARCH FUNCTION.
IT
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REPLACES THE UNDERLYING WEBSITE.
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HAS BECOME IS SIMPLY AN INFRINGING WEBSITE LIKE ANY OTHER
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WEBSITE.
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AND, IN FACT, WHAT GOOGLE
THE HONORABLE SANDRA IKUTA:
-- HALF OF THE -- WHEN
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YOU GOT TO THE SECOND PAGE, THAT THE HALF THAT SHOWED THE
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ORIGINAL OR FULL-SIZE IMAGE WAS, IN FACT, THE WEBSITE, THE
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INFRINGING WEBSITE, AND NOT --
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MR. FRACKMAN:
THE BOTTOM HALF WAS FRAMED AND
LINKED.
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THE HONORABLE SANDRA IKUTA:
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MR. FRACKMAN:
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THE HONORABLE SANDRA IKUTA:
BUT IT HAS --
-- BY GOOGLE.
IT ISN'T GOOGLE.
IT'S
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THE INFRINGING WEBSITE, WASN'T --
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MR. FRACKMAN:
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DEFINITION, YOUR HONOR.
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PART IS GOOGLE.
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EXCEPT IN PERHAPS A MERE TECHNICALITY, WHICH IS WHERE THE
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DISTRICT COURT WENT WRONG.
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OF WHERE THE IMAGE IS COMING FROM WITH THE -- AND IGNORED THE
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PRACTICAL ISSUE, WHICH IS THAT THE IMAGES BEING DISPLAYED TO
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A USER WHO TYPES IN GOOGLE.COM, STAYS ON GOOGLE.COM, AND
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NEVER GOES ANYPLACE ELSE, AND IS SHOWN BOTH THE SMALL IMAGES
I SUPPOSE IT'S A QUESTION OF
YOU ARE TETHERED TO GOOGLE.
THE TOP
YOU'VE NEVER GONE TO THE INFRINGING WEBSITE
IT ELEVATED THE TECHNICAL ISSUE
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AND THE LARGE IMAGE.
AND IF I MAY WITH THE OTHER MINUTE OR TWO REMAINING
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DISCUSS BRIEFLY CONTRIBUTION, ANOTHER BASIS, ANOTHER AREA
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WHERE WE BELIEVE THE DISTRICT COURT ERRED.
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AND, AGAIN, HERE TOO THE COURT FOUND OR ASSUMED IN
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OUR FAVOR KNOWLEDGE WITH ONE ASPECT AND, THEN, FOUND THAT
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THERE WOULD BE NO CONTRIBUTION.
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SET AN INSURMOUNTABLE -- AN INSURMOUNTABLE OBSTACLE TO
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CONTRIBUTION HERE.
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BUT THE DISTRICT COURT AGAIN
WHAT THE COURT BASICALLY SAID, AS ONE OF OUR AMICUS
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POINTED OUT, IS THAT THERE HAD TO BE A BUT-FOR CAUSATION.
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OTHER WORDS, THE INFRINGING WEBSITES WOULD HAVE TO RELY ON
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GOOGLE FOR THEIR VERY EXISTENCE IN ORDER FOR GOOGLE TO
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CONTRIBUTE.
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IN FONOVISA AND IN NAPSTER.
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AND THAT IS SIMPLY NOT WHAT THIS COURT HAS HELD
THE DEFINITION THAT THIS COURT ADOPTED, WHICH IS
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ESSENTIALLY THE UNIVERSAL DEFINITION OF CONTRIBUTION, IS
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ANYONE WHO ENCOURAGES OR ASSISTS THE INFRINGEMENT.
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AND WE'VE POINTED OUT TO THE COURT THE NUMEROUS
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WAYS THAT THE INFRINGEMENT IS ASSISTED.
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OBVIOUS BEING THAT THERE IS NO DISPUTE THAT THE UNDERLYING
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INFRINGING WEBSITE THAT IS BEING FRAMED IS INFRINGING.
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IN
PERHAPS THE MOST
AND HOW IS GOOGLE ASSISTING THAT UNDERLYING
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INFRINGING WEBSITE.
IT'S GIVING IT THE AUDIENCE OF THE THIRD
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MOST TRAFFICKED DESTINATION ON THE INTERNET.
IT'S GIVING IT
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EYEBALLS.
IT'S GIVING IT THE DRAW, EXACTLY WHAT THIS COURT
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DESCRIBED IN NAPSTER.
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MONEY.
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THAT THE USER GOES ANYPLACE ADDITIONAL TRAFFIC.
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PROVIDING ITS AUDIENCE, AND IT'S PROVIDING AN AUDIENCE TO THE
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UNDERLYING WEBSITE.
IT'S GIVING IT ADS.
IT'S GIVING IT REVENUE.
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IT'S GIVING IT
IT'S GIVING IT TO THE EXTENT
AND IT'S
AND THAT'S ALL DONE, YOUR HONOR -- IT'S ALL DONE BY
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WHAT GOOGLE DOES IN PREPARATION FOR THAT -- GOING OUT TO
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THESE WEBSITES THAT LIKELY WOULD NOT OTHERWISE BE FOUND,
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PULLING BACK THEIR IMAGES, REFORMATTING THEM, AND PROVIDING
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THE ULTIMATE LARGE-SIZE PICTURE.
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AND IT DOES THAT, YOUR HONOR -- AND I WOULD SUBMIT
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THAT THIS SEALS THE EVIDENCE OF CONTRIBUTION.
IT DOES THAT,
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YOUR HONOR, AS WE POINTED OUT, YOUR HONORS, EVEN WITHOUT THE
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UNDERLYING WEBSITE KNOWING ABOUT IT.
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DOESN'T HAVE TO KNOW ABOUT IT.
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THAT IMAGE ANYMORE.
THE UNDERLYING WEBSITE
IT MAY NOT EVEN BE DISPLAYING
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SO, I GUESS I'LL END WHERE I STARTED, WHICH IS WHAT
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BETTER EVIDENCE COULD THERE BE THAT GOOGLE IS DISPLAYING THAT
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THE UNDERLYING WEBSITE DOESN'T EVEN KNOW WHAT'S GOING ON.
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THE HONORABLE MICHAEL HAWKINS:
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LITTLE OVER FOUR MINUTES FOR REBUTTAL.
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ARGUMENT.
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COUNSEL.
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MR. BRIDGES:
OKAY.
YOU HAVE A
THANK YOU FOR YOUR
GOOD MORNING, YOUR HONOR.
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AND MAY IT PLEASE THE COURT, ANDREW BRIDGES FOR
GOOGLE, INC.
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I MUST SAVE SOME TIME FOR AMAZON'S COUNSEL TO
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ARGUE.
I WOULD ALSO LIKE TO SAVE TWO MINUTES FOR REBUTTAL ON
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THE CROSS-APPEAL IF I MAY.
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THE HONORABLE MICHAEL HAWKINS:
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MR. BRIDGES:
FIRST, I WILL DISCUSS THE FAIR USE ON
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THE CROSS-APPEAL.
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THE POINTS THAT MR. FRACKMAN MADE.
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SURE.
AND, THEN, I'D LIKE TO RESPOND TO SOME OF
THE DISTRICT COURT IN THIS CASE RULED AGAINST FAIR
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USE IN A CONTEXT WHERE GOOGLE PROVIDES A REMARKABLY USEFUL,
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COMPREHENSIVE, GENERAL PURPOSE SEARCH ENGINE AND ONE THAT
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RELIES UPON A THUMBNAIL INDEX JUST LIKE THE ONE APPROVED BY
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THIS COURT IN KELLY VERSUS ARRIBA SOFT.
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THE DISTRICT COURT GRANTED AN INJUNCTION DESPITE A
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NUMBER OF REMARKABLE FINDINGS IN GOOGLE'S FAVOR.
THE
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DISTRICT COURT ENJOINED GOOGLE DESPITE ITS FINDING OF FACT
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THAT GOOGLE'S USE WAS HIGHLY TRANSFORMATIVE -- THE
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SUPPLEMENTAL RECORD -- I GUESS THE RECORD AT 1294 -- DESPITE
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THE FINDING OF FACT THAT GOOGLE PROVIDES AN ESSENTIAL SOURCE
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OF VITAL INFORMATION, DESPITE THE FINDING OF FACT THAT GOOGLE
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DOES NO MORE THAN WAS NECESSARY TO ACHIEVE ITS OBJECTIVE OF
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PROVIDING EFFECTIVE IMAGE SEARCH CAPABILITIES, DESPITE THE
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DISTRICT COURT'S MISGIVINGS ABOUT THE EFFECT OF THE
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INJUNCTION ON THE INTERNET, AND DESPITE THE DISTRICT COURT'S
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RECOGNITION OF GOOGLE'S IMMENSE VALUE TO THE PUBLIC.
THE DISTRICT COURT'S OPINION IN GENERAL WAS VERY
THOUGHTFUL IN MANY WAYS.
REMARKABLY THOUGHTFUL.
BUT THE DISTRICT COURT MADE THREE SPECIFIC ERRORS
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IN ITS FAIR-USE ANALYSIS THAT CALLED FOR REVERSAL OF THE
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INJUNCTION.
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OF FAIR USE, NAMELY, THE PURPOSE AND CHARACTER OF THE USE;
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THE FOURTH FACTOR OF FAIR USE, NAMELY, THE EFFECT OF THE USE
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ON THE MARKET VALUE OF THE ORIGINAL; AND, MOST IMPORTANTLY,
AND THE THREE ERRORS RELATE TO THE FIRST FACTOR
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UPON THE WAY THE DISTRICT COURT SYNTHESIZED ITS CONCLUSION
11
REGARDING FAIR USE.
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ON THE FIRST FAIR-USE FACTOR, AS I NOTED EARLIER,
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THE DISTRICT COURT FOUND GOOGLE'S USE TO BE HIGHLY
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TRANSFORMATIVE.
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SUPPOSED COMMERCIALISM OF GOOGLE'S SEARCH.
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WRONGFUL IN TWO DIFFERENT WAYS.
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AND, THEN, THE DISTRICT COURT ANALYZED THE
THAT FINDING WAS
FIRST, THE DISTRICT COURT ACKNOWLEDGED -- IT WAS AT
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1291 -- THAT THE USE THAT'S RELEVANT IN FAIR USE IS THE USE
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OF GOOGLE, NOT THIRD PARTIES.
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HERE, GOOGLE'S USE WAS SEARCH.
THE COMMERCIALISM
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CAME IN BECAUSE OF ADVERTISING THAT GOOGLE PLACES ON WEBSITES
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THROUGHOUT THE WEB.
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NO ADVERTISING ON GOOGLE IMAGE SEARCH.
THE DISTRICT COURT THOUGHT THAT GOOGLE'S
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COMMERCIALISM BY PLACING ADS ON THIRD-PARTY WEBSITES THAT ARE
25
NOT PART OF GOOGLE IMAGE SEARCH -- THEY MAY TURN UP
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INCIDENTALLY IN SEARCH RESULTS ON IMAGE SEARCH, BUT THEY ARE
2
NOT PART OF GOOGLE IMAGE SEARCH.
3
THAT THAT MADE GOOGLE'S IMAGE SEARCH MORE COMMERCIAL THAN THE
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IMAGE SEARCH IN KELLY VERSUS ARRIBA.
THE DISTRICT COURT FOUND
5
BUT THIS COURT NOTED IN KELLY VERSUS ARRIBA AT
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PAGES 815 TO 816 THAT, IN FACT, KELLY'S IMAGE SEARCH HAD
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ADVERTISING -- IT WAS ARRIBA SOFT'S IMAGE SEARCH -- BUT THERE
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WAS ADVERTISING IN ARRIBA SOFT SEARCH.
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BUT, MOST IMPORTANTLY, THE DISTRICT COURT FOCUSED
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ON AN UNRELATED ADVERTISING CAMPAIGN TO CALL GOOGLE IMAGE
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SEARCH COMMERCIAL.
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BUT THE MOST IMPORTANT ERROR THE DISTRICT COURT
13
MADE ON THIS FACTOR WAS THE FACT THAT IN CAMPBELL VERSUS
14
ACUFF-ROSE, AT PAGE 579, THE SUPREME COURT TEACHES THAT THE
15
MORE TRANSFORMATIVE THE USE, THE LESS IMPORTANT OTHER
16
FACTORS, SUCH AS COMMERCIALISM BECOME.
17
TRANSFORMATIVE THE USE, THE LESS IMPORTANT THE OTHER FACTORS
18
BECOME.
19
THE MORE
WELL, THE DISTRICT COURT HERE ALLOWED THE
20
COMMERCIALISM FINDING TO TRUMP THE FINDING OF FACT THAT THE
21
GOOGLE SEARCH WAS HIGHLY TRANSFORMATIVE.
22
COURT GOT THE CAMPBELL TEACHING PRECISELY BACKWARDS IN ITS
23
FIRST FAIR-USE ANALYSIS.
24
LAW.
25
SO, THE DISTRICT
AND THAT WAS ITS FIRST ERROR OF
THE SECOND ERROR WAS ON THE FOURTH FACTOR, THE
18
1
EFFECT OF GOOGLE'S USE ON THE MARKETPLACE.
2
COURT DID MAKE A MISTAKE BY LOOKING AT ALLEGED HYPOTHETICAL
3
USES BY CONSUMERS WITH CELL PHONES.
4
RECORD THAT SAID CONSUMERS WERE ACTUALLY USING CELL PHONES TO
5
DOWNLOAD GOOGLE IMAGES.
6
COMMON SENSE MIGHT DICTATE THAT PERSONS WITH CELL PHONES
7
USING GOOGLE ON A BROWSER MIGHT USE GOOGLE INSTEAD OF GETTING
8
IMAGES DIRECTLY FROM PERFECT 10.
9
HERE THE DISTRICT
THERE'S NOTHING IN THE
BUT THE DISTRICT COURT FELT THAT
BECAUSE THIS VIOLATES THE PRINCIPLE I MENTIONED
10
EARLIER, THAT IN ANALYZING FAIR USE, ONE LOOKS AT THE USE OF
11
THE PARTY BEING CHALLENGED, NOT THIRD PARTY USES.
12
AS A MATTER OF FACT, THE SUPREME COURT IN SONY
13
VERSUS UNIVERSAL CITY STUDIOS SAID AT PAGE 446, AND I
14
QUOTE:
15
"THIRD-PARTY CONDUCT IS WHOLLY IRRELEVANT
16
IN AN ACTION FOR DIRECT INFRINGEMENT."
17
WELL, THIS WAS A CLAIM FOR DIRECT INFRINGEMENT.
18
THE DISTRICT COURT WRONGLY LOOKED AT SOME HYPOTHESIS ABOUT
19
WHAT USERS MIGHT DO TO CHARGE GOOGLE WITH SUPPLANTING THE
20
MARKET FOR PERFECT 10 IMAGES.
21
22
23
OTHER CASES THAT SUPPORT THIS ARE -- WELL,
ACTUALLY, LET ME GET TO THE SECOND POINT.
THE DISTRICT COURT ALSO WRONGLY LOOKED AT THAT
24
THIRD-PARTY LICENSING MARKET.
THE LICENSING MARKET THAT
25
SHOULD HAVE BEEN EVALUATED BY THE DISTRICT COURT WAS WHETHER
19
1
THERE IS A POTENTIAL OR ACTUAL LICENSING MARKET BY PERFECT 10
2
FOR IMAGES TO SEARCH ENGINES.
3
THE QUESTION IS WHETHER THERE'S A LICENSING MARKET
4
FOR THIS USE IN THIS CASE.
5
SEVERAL CASES ON THAT.
6
IS IMPORTANT ON THAT.
7
AND THE SECOND CIRCUIT HAS HAD
MOST RECENTLY, THE BILL GRAHAM CASE
ONE LOOKS TO SEE, HAS GOOGLE GONE INTO AN AREA
8
WHERE GOOGLE SHOULD HAVE TAKEN A LICENSE OR WHERE THERE'S A
9
POTENTIAL OF A LICENSE TO GOOGLE.
10
THERE IS NO SUCH
POTENTIAL.
11
HARPER & ROW PUTS IT ANOTHER WAY:
HAS SOMEBODY
12
ENGAGED IN A COMMERCIAL ACTIVITY WITHOUT PAYING THE CUSTOMARY
13
PRICE?
WELL, GOOGLE HAS NOT FAILED TO PAY THE CUSTOMARY
14
PRICE.
THERE IS NO LICENSING MARKET FOR SEARCH ENGINE
15
RESULTS.
16
SO, THAT WAS ANOTHER ERROR.
BUT THE BIGGEST ERROR ON FAIR USE WAS IN THE WAY
17
THE DISTRICT COURT SYNTHESIZED ITS CONCLUSION OVER FAIR USE.
18
SYNTHESIZED THE FACTORS.
19
DISTRICT COURT.
AND I'D LIKE TO QUOTE FROM THE
20
"ALTHOUGH THE COURT IS RELUCTANT TO ISSUE
21
A RULING THAT MIGHT IMPEDE THE ADVANCE OF
22
INTERNET TECHNOLOGY, AND ALTHOUGH IT IS
23
APPROPRIATE FOR COURTS TO CONSIDER THE
24
IMMENSE VALUE TO THE PUBLIC OF SUCH
25
TECHNOLOGIES, EXISTING JUDICIAL PRECEDENTS
20
1
DO NOT ALLOW SUCH CONSIDERATIONS TO TRUMP A
2
REASONED ANALYSIS OF THE FOUR FAIR USE FACTORS.
3
WELL, IN FACT, IN CAMPBELL VERSUS ACUFF-ROSE, THE
4
SUPREME COURT MADE IT CLEAR THAT -- WELL, FIRST, HARPER &
5
ROW, THE SUPREME COURT MADE IT CLEAR THAT THE FACTORS ARE NOT
6
TO BE MECHANISTICALLY APPLIED.
7
CAMPBELL VERSUS ACUFF-ROSE TEACHES THAT THE COURTS
8
ARE TO LOOK AT THE FACTORS FLEXIBLY AND TO VIEW THEM IN THE
9
LIGHT OF COPYRIGHT'S PURPOSE, WHICH IS, NAMELY, THE PROMOTION
10
OF THE PROGRESS OF SCIENCE AND THE USEFUL ARTS.
11
HERE, THE DISTRICT COURT SOUNDS APOLOGETIC THAT ITS
12
MECHANISTIC CALCULATION OF THE FACTORS UNDER WHAT IT BELIEVES
13
WERE EXISTING JUDICIAL PRECEDENTS WOULD NOT ALLOW THE
14
CONSIDERATIONS THAT ARE ESSENTIALLY THE GRAND COPYRIGHT
15
CONSIDERATIONS --
16
THE HONORABLE SANDRA IKUTA:
MR. BRIDGES.
17
MR. BRIDGES:
18
THE HONORABLE SANDRA IKUTA:
19
ARE THERE CASES OR WHAT ARE THE BEST CASES FOR
-- TO TRUMP THE ANALYSIS.
EXCUSE ME.
I'M SORRY.
20
SAYING THAT THE COURT COULD HAVE ALLOWED ITS ASSESSMENT OF
21
PUBLIC BENEFIT OF THE GOOGLE FUNCTIONS TO OUTWEIGH THE FOUR
22
FACTORS OR ITS MORE DETAILED WEIGHING OF THE FOUR FAIR USE
23
FACTORS.
24
POINT?
25
IS THERE A CASE THAT WOULD ASSIST YOU ON THAT
MR. BRIDGES:
WELL, I DON'T THINK -- YOUR HONOR,
21
1
I'M NOT SURE THAT THERE WOULD BE SUCH A CASE BECAUSE I DON'T
2
-- OUTSIDE OF THIS CASE, I'M NOT SURE THAT I'VE SEEN A CASE
3
THAT PITS THE PUBLIC BENEFIT AGAINST THE FOUR FAIR USE
4
FACTORS.
5
THE FOUR FAIR USE FACTORS ARE EQUITABLE.
THEY ARE
6
MEANT TO BE A HEURISTIC DEVICE BY WHICH THE COURT COMES UP
7
WITH THE GRAND CONCLUSION.
8
9
SO, I WOULD NOT SUGGEST THAT THERE IS SOME EXTERNAL
PUBLIC BENEFIT.
THESE ARE ALL GUIDES.
THEY'RE NON-EXCLUSIVE
10
UNDER THE STATUTE AND EQUITABLE UNDER THE CASES THAT HELP
11
GUIDE A COURT TO LOOK AT THE BIG PICTURE, WHICH IS THE
12
PROMOTION AND PROGRESS OF SCIENCE IN THE USEFUL ART.
13
FAIR USE IS NOT AN EMBARRASSMENT TO COPYRIGHT.
14
IS NOT A THREAT TO COPYRIGHT.
15
OF COPYRIGHT.
16
SUPREME COURT SAID IN CAMPBELL AT 575:
IT
IT IS INDEED THE FULFILLMENT
BECAUSE FAIR USE HAS LONG BEEN -- AS THE
17
"FROM THE INFANCY OF COPYRIGHT PROTECTION,
18
SOME OPPORTUNITY FOR FAIR USE OF COPYRIGHT
19
MATERIALS HAS BEEN THOUGHT NECESSARY TO
20
FULFILL A COPYRIGHT'S VERY PURPOSE TO
21
PROMOTE THE PROGRESS OF SCIENCE IN THE USEFUL
22
ARTS."
23
IN THIS CASE BECAUSE THE DISTRICT COURT ERRED ON
24
TWO CRITICAL FACTORS, THE FIRST AND FOURTH FACTORS, AND
25
BECAUSE IT ERRED IN ITS SYNTHESIS, ITS ENTIRE CONCLUSION WAS
22
1
ERROR AND SHOULD BE REVERSED.
2
3
I WOULD LIKE TO MOVE ON TO A COUPLE OF THE OTHER
ISSUES TO MAKE SURE THAT I RESPOND TO MR. FRACKMAN.
4
PERFECT 10 HAS CONCEDED THAT VOLITIONAL CONDUCT IS
5
REQUIRED FOR A FINDING OF DIRECT INFRINGEMENT.
6
INTERESTING IS THAT PERFECT 10 TRIES TO DISTORT THE FACTS TO
7
MAKE GOOGLE'S CONDUCT LOOK HIGHLY VOLITIONAL.
8
9
10
WHAT'S
AND WE RESPOND IN DETAIL ON PAGE 3 AND LATER IN THE
BRIEF.
I'LL DIRECT THE COURT TO THAT RATHER THAN TAKING TIME
ON IT HERE.
11
BUT WE MUST BEAR IN MIND THAT GOOGLE IS A GENERAL
12
PURPOSE, HIGHLY AUTOMATED SEARCH ENGINE THAT MAKES VAST
13
AMOUNTS OF INFORMATION AVAILABLE FROM THE INTERNET.
14
DOES NOT SINGLE OUT PERFECT 10.
15
INFRINGEMENTS.
16
MEDIA.
17
EMBRACED WITHIN GOOGLE'S SEARCH.
18
AND IT
IT DOES NOT SINGLE OUT
IT DOES NOT EVEN SINGLE OUT ONE TYPE OF
ANYTHING THAT IS AVAILABLE ON THE INTERNET IS
NOW, THE QUESTION IS WHETHER THERE'S AN IMPLICATION
19
OF THE DISPLAY RIGHT HERE.
20
COURT'S OPINION WAS OUTSTANDING ON THE DISPLAY RIGHT, VERY
21
THOUGHTFUL.
22
SUPPORT GOOGLE ENTIRELY.
23
PUBLIC POLICIES AND SOUND JUDGMENT AS TO WHY THE DISPLAY
24
RIGHT SHOULD NOT BE IMPLICATED HERE.
25
AND, FRANKLY, THE DISTRICT
IT DID TEND TO ADDRESS ONLY THE CASES WHICH DO
AND IT ADDRESSED THE IMPORTANT
I ADMIT THAT THE DISTRICT COURT DID NOT
23
1
SPECIFICALLY ADDRESS THE STATUTE, DID NOT SPECIFICALLY
2
ADDRESS THE LEGISLATIVE HISTORY, BUT BOTH, IN FACT, SUPPORT
3
GOOGLE HERE.
4
"SHOWING A COPY."
BECAUSE THE STATUTE DEFINES DISPLAYING AS
5
NOW, PERFECT 10 FOCUSES ON ALL THE DIFFERENT TYPES
6
OF METHODS BY WHICH SOMETHING MAY APPEAR OR THE IMAGE MAY BE
7
GENERATED.
8
DISPLAY A WORK MEANS TO SHOW A COPY.
9
IS WHO IS CAUSING THE DISPLAY.
10
BUT WHAT PERFECT 10 FAILED TO FOCUS ON IS THAT TO
AND THE QUESTION HERE
WHEN A WEBSITE APPEARS ON A BROWSER, TO ANSWER YOUR
11
HONOR'S QUESTION, IT'S NOT NETSCAPE.
12
NOT SOMETHING THAT MIGHT APPEAR AROUND A WEBSITE THAT IS
13
DISPLAYING IT.
14
TRANSMISSION.
15
THE USER, THOSE ARE THE ONES WHO DISPLAY.
16
IT'S NOT DELL.
IT'S
IT IS THE SOURCE WEBSITE THAT ENGAGES IN THE
AND ANYBODY IN THAT PATH OF TRANSMISSION TO
GOOGLE IS OUTSIDE THAT PATH OF TRANSMISSION.
17
GOOGLE IS THE CARD CATALOG.
18
NECESSARILY FURNISHING THE BOOK, EVEN THOUGH THE CARD CATALOG
19
TELLS YOU WHERE YOU CAN GO FIND THE BOOK SO THAT THE USER BY
20
ACTIVATING THE BROWSER, BY CLICKING THE LINK, THE USER
21
RECEIVES THE TRANSMISSION FROM THE WEBSITE.
22
WEBSITE THAT DISPLAYS.
23
TO BE TO SHOW A COPY.
24
25
AND THE CARD CATALOG IS NOT
IT IS THE
SO, THE STATUTE IS CLEAR THAT IT HAS
I NOTICE THAT PLAINTIFFS AND THE PEOPLE ON THAT
SIDE LIKE TO SAY, "WELL, IT HAS SOMETHING TO DO WITH," "YOU
24
1
CAN HELP BRING ABOUT," "ULTIMATELY CAUSE," THAT THE STATUTE
2
DOESN'T PUT ANYBODY IN A CHAIN OF CAUSATION RESPONSIBLE FOR
3
THE DISPLAY.
4
DISPLAY, WITHOUT WHICH THERE WOULD BE NO PICTURE.
5
THE ELECTRIC COMPANY IS NOT RESPONSIBLE FOR THE
THE PARTY THAT'S RESPONSIBLE FOR THE DISPLAY IS THE
6
PARTY THAT EITHER SERVES THE CONTENT, HOSTS THE CONTENT, OR
7
TRANSMITS THE CONTENT.
AND GOOGLE JUST DOESN'T DO THAT.
8
AND, FRANKLY, UNDER THEIR LINE OF REASONING ALL
9
HYPERLINKING WOULD BE LIABLE UNDER THE DISPLAY RIGHT, AND
10
THAT WOULD BE A DISASTER FOR THE INTERNET.
11
CASE A FRAMED APPEARANCE OF THE WEBSITE IS REALLY
12
FUNCTIONALLY NO DIFFERENT FROM A REGULAR HYPERLINK.
13
INSTANCES YOU CLICK ON THE LINK, AND YOU GET A NEW PAGE.
14
BECAUSE IN OUR
IN BOTH
YOU DO THAT WITH A STRAIGHT HYPERLINK, THE NEW PAGE
15
FILLS THE SCREEN.
16
PAGE FILLS PART OF THE SCREEN, AND THERE'S STILL SOMETHING
17
LEFT FROM GOOGLE ON TOP.
18
YOU DO IT WITH A FRAMED HYPERLINK, THE NEW
WELL, IF REGULAR HYPERLINKING IS NOT AN IMPLICATION
19
OF THE DISPLAY RIGHT, WHICH THEY CONCEDE, AND THE MPAA
20
AGREES, IF THAT'S NOT AN INFRINGEMENT, THEN, WHEN IT'S FRAMED
21
YOU CAN'T TURN IT INTO AN INFRINGEMENT JUST BECAUSE GOOGLE
22
HAS PLACED ITS OWN CONTENT AT THE TOP OF THE PAGE.
23
TURN SOMETHING FROM NOT A DISPLAY INTO A DISPLAY BY THE FACT
24
THAT GOOGLE HAS ADDED A SEPARATE FRAME AT THE TOP.
25
THE HONORABLE SANDRA IKUTA:
YOU CAN'T
WHAT ABOUT SECONDARY
25
1
LIABILITY IN THAT CONTEXT?
2
IF GOOGLE IS INFORMED THAT THAT PAGE, THAT WEBSITE
3
-- SOURCE WEBSITE IS AN INFRINGER, AND GOOGLE WOULD BE ABLE
4
THEN TO SUPPRESS ACCESS TO IT, CAN YOU DISCUSS WHY THAT
5
DOESN'T RAISE THE CONTRIBUTORY LIABILITY ISSUE.
6
MR. BRIDGES:
YES, YOUR HONOR.
7
FIRST, IN THIS CASE GOOGLE REGULARLY DOES TAKE DOWN
8
ITS LINKS UPON NOTICE.
IT REGULARLY DOES.
9
SO NOT BECAUSE IT HAS TO NECESSARILY.
AND IT HAS DONE
IN THE DISTRICT COURT
10
BELOW -- AND THERE WAS NO FINDING OF CONTRIBUTORY OR
11
VICARIOUS LIABILITY FOR THIS -- GOOGLE HAS CONTINUED TO
12
RESPOND TO D.M.C.A. NOTICES, EVEN THOUGH THERE'S A FINDING OF
13
NO SECONDARY LIABILITY.
14
IT DOWN.
15
SO, IT'S GOOGLE'S PRACTICE TO TAKE
BUT STILL THERE WOULD BE NO LIABILITY BECAUSE IF
16
YOU STEP BACK AND LOOK AT HOW SECONDARY LIABILITY HAS
17
DEVELOPED UNDER THE LAW, IT'S DEVELOPED IN TWO DIFFERENT WAYS
18
-- TWO DIFFERENT WAYS OF ANSWERING THE SAME QUESTION.
19
IS PERSON A RESPONSIBLE FOR THE ACTS OF PERSON B.
20
WHEN
AND VICARIOUS DEPENDS UPON A SPECIAL RELATIONSHIP.
21
WHEREAS CONTRIBUTORY DEPENDS UPON SPECIAL CONDUCT.
IN
22
VICARIOUS LIABILITY, THIS COURT AND FONAVISA AND NAPSTER HAVE
23
FOLLOWED, AND NEVER DEPARTED FROM, THE SECOND CIRCUIT IN
24
SHAPIRO, BERNSTEIN, AND GERSHWIN, BOTH OF WHICH WERE
25
ACKNOWLEDGED BY THE SUPREME COURT IN SONY, THAT ON VICARIOUS
26
1
THE SPECIAL RELATIONSHIP ORIGINALLY WAS SOMETHING LIKE
2
RESPONDEAT SUPERIOR OR PRINCIPAL-AGENT.
3
AND WHAT WAS ALWAYS CLEAR WAS THAT LANDLORD/TENANT
4
NEVER BECAME THE TYPE OF RELATIONSHIP.
5
HAS TO BE A TIGHT RELATIONSHIP.
IF YOU LOOK AT THIS -- IT'S
6
ALMOST LIKE A JOINT ENTERPRISE.
JUST SOME DETACHED DISTANT
7
RELATIONSHIP HAS NEVER COUNTED.
8
SO, FOR VICARIOUS IT
AND THE SUPREME COURT IN MEYER VERSUS HOLLEY, IN A
9
DIFFERENT CONTEXT, HOUSING ACT CONTEXT, MADE IT CLEAR THAT IN
10
A FEDERAL STATUTORY TORT SCHEME, SUCH AS COPYRIGHT LAW, IT IS
11
IMPROPER TO EXPAND VICARIOUS LIABILITY BEYOND TRADITIONAL
12
FORUMS WITHOUT CONGRESSIONAL AUTHORIZATION.
13
SO, THIS COURT HAS FOUND VICARIOUS LIABILITY ONLY
14
WHEN THERE REALLY IS SOME REMARKABLY SPECIAL RELATIONSHIP
15
BETWEEN THE TWO PARTIES.
16
THAT DOESN'T EXIST HERE.
NOW, ON CONTRIBUTORY, IT DEPENDS UPON SPECIAL
17
CONDUCT, A SPECIAL TYPE OF CONDUCT.
18
SECOND CIRCUIT, IT REQUIRED PERVASIVE PARTICIPATION IN THE
19
CONDUCT AMOUNTING TO THE INFRINGEMENT.
20
AND GOING BACK TO THE
THIS COURT'S NEVER VARIED FROM THAT.
AND THIS
21
COURT HAS ALWAYS GONE BACK TO SHAPIRO, BERNSTEIN AND
22
GERSHWIN.
23
WAS:
IN THE NAPSTER II CASE, THE PHRASE AT PAGE 1019
24
"THE DEFENDANT HAS TO ENGAGE IN PERSONAL
25
CONDUCT THAT ENCOURAGES OR ASSISTS THE
27
1
INFRINGEMENT."
2
GOING BACK TO FIRST PRINCIPLES, GOOGLE IS A GENERAL
3
PURPOSE, VAST, AUTOMATED SYSTEM.
4
ON PERFECT 10, ON INFRINGEMENT, OR ANYTHING.
5
WHAT IS OUT THERE.
6
PROVOKES LIABILITY FOR CONTRIBUTORY INFRINGEMENT LIABILITY
7
FOR INFRINGEMENTS BY OTHERS.
8
IT IS NOT DESIGNED TO FOCUS
IT REFLECTS
THAT IS NOT THE KIND OF CONDUCT THAT
THE HONORABLE SANDRA IKUTA:
NAPSTER II ALSO HAD
9
THE LANGUAGE THAT IF A PARTY LEARNS OF SPECIFIC INFRINGING
10
MATERIALS AND FAILS TO PURGE IT, THE OPERATOR KNOWS OF AND
11
CONTRIBUTES TO THE DIRECT INFRINGEMENT.
12
13
14
MR. BRIDGES:
THAT'S RIGHT.
IT WAS VERY, VERY
SPECIALIZED KNOWLEDGE IN NAPSTER FOR A VARIETY OF REASONS.
FIRST OF ALL, GOOGLE HAS REGULARLY TAKEN DOWN LINKS
15
BASED ON NOTICE.
16
VERSUS UNIVERSAL CITY STUDIOS, AS ACKNOWLEDGED BY NAPSTER,
17
HAS NEVER MADE SOMEBODY LIABLE FOR GENERALIZED KNOWLEDGE THAT
18
MAY BE USED FOR BAD THINGS.
19
20
21
BUT IN THIS CASE -- FIRST OF ALL, SONY
AND, THEN, SECOND, IS THERE SPECIFIC KNOWLEDGE
BASED ON NOTICES.
WELL, IN THIS CASE, YOUR HONOR, THERE HAVE BEEN
22
VERY, VERY DEFECTIVE NOTICES.
23
WHAT THEY CAN FIGURE OUT TO TAKE DOWN BASED ON
24
EXTRAORDINARILY BAD NOTICES IN THIS CASE.
25
GOOGLE HAS ALWAYS TAKEN DOWN
I NEED TO LEAVE TIME FOR AMAZON.
I'VE USED UP
28
1
QUITE A BIT OF TIME.
2
REBUTTAL ON THE CROSS-APPEAL.
3
I DO NEED TO RESERVE A LITTLE TIME FOR
BUT I DID WANT TO POINT OUT ALSO ON THE DISPLAY
4
ISSUE, THE TWO AMICUS BRIEFS BY THE ELECTRONIC FRONTIER
5
FOUNDATION AND NET COALITION HAD PAGES THAT WE COULDN'T USE,
6
THAT REALLY EXPLAINED IN DETAIL THE PROPRIETY OF -- THE FACT
7
THAT DISPLAY IS NOT IMPLICATED HERE.
8
TO THE COURT.
9
10
AND I DO COMMEND THOSE
THE HONORABLE MICHAEL HAWKINS:
THE AMICUS BRIEFS
WERE QUITE HELPFUL.
11
MR. BRIDGES:
YES.
12
THE HONORABLE MICHAEL HAWKINS:
13
WE'LL HEAR FROM AMAZON NOW.
14
MR. JANSEN.
15
MR. JANSEN:
16
GOOD MORNING.
17
I NOTICE THAT MR. FRACKMAN DIDN'T MENTION AMAZON'S
YES.
ON BOTH SIDES.
THANK YOU, YOUR HONOR.
MARK JANSEN FOR AMAZON.COM.
18
NAME DURING HIS ARGUMENT SO PERHAPS HE IS NOT SO CONCERNED
19
ABOUT WHAT AMAZON DOES.
20
THINK, VERY WELL THE ISSUES OF FAIR USE AND WHETHER THE
21
COURT'S SERVER TEST FOR DIRECT INFRINGEMENT WAS APPROPRIATE
22
AND WHETHER IT WAS THE RIGHT TEST.
23
BUT MR. BRIDGES HAS COVERED, I
I THINK THE BIG PICTURE HERE -- AND, OBVIOUSLY, I
24
UNDERSTAND THE COURT IS VERY WELL AWARE THAT THE JUDGE IN
25
THIS CASE FOUND THAT AMAZON IS IN A VERY DIFFERENT SITUATION
29
1
THAN GOOGLE IN THE CONTEXT OF PROVIDING IMAGE SEARCH RESULTS.
2
NUMBER ONE, AS WE POINTED OUT IN OUR BRIEF, AND
3
THIS REALLY IS NOT NECESSARILY PERTINENT TO THE RECORD OF THE
4
COURT'S DECISION, BUT AMAZON WAS BEING PROVIDED IMAGE SEARCH
5
RESULTS BY CONTRACT FROM GOOGLE.
6
FOUND, DOES NOT CRAWL A WEB, DOES NOT INDEX THE WEB.
7
NOT STORE OR COPY ANY IMAGES, THUMBNAIL OR OTHERWISE, ON ITS
8
SERVERS.
SO, AMAZON, AS THE COURT
IT DOES
IT SIMPLY ACTS IN AN AUTOMATIC CAPACITY.
9
IF A USER IS ON AN AMAZON SITE AND WANTS TO CONDUCT
10
A SEARCH USING ITS BROWSER, THE USER USING ITS BROWSER INPUTS
11
WHATEVER THE SEARCH TERM IS.
12
THE AMAZON SERVER.
13
UNDER ITS CONTRACT SENDS BACK RESPONSIVE LINKS USING THE
14
GOOGLE LOGIC FOR BASICALLY SORTING SEARCH REQUESTS.
15
COMES BACK THROUGH AMAZON, AND IT GOES THEN UNALTERED.
16
URLS, THE INSTRUCTIONS TO ALLOW THE USER'S WEB BROWSER TO
17
ACCESS AND CALL UP THE INFORMATION THAT THE USER WANTS GETS
18
RELAYED.
19
SENDING INSTRUCTIONS TO A CAR SO THAT CAR CAN THEN TRAVEL TO
20
A STORE TO GET -- OR TO A LIBRARY OR TO A BOOKSTORE TO GET
21
WHAT IT WANTS.
22
THAT SEARCH TERM GOES THROUGH
IT'S TRANSMITTED TO GOOGLE.
GOOGLE THEN
THAT
THOSE
IT'S ESSENTIALLY THE EQUIVALENT OF GIVING --
AMAZON NO LONGER HAS THAT CONTRACT WITH GOOGLE.
23
SO, THAT CONTRACT ENDED IN MARCH.
WE LET THE COURT KNOW
24
ABOUT THAT IN OUR PAPERS SIMPLY SO THE COURT WOULD BE AWARE
25
OF THE CHANGE IN CIRCUMSTANCES.
I DON'T THINK IT REALLY
30
1
NECESSARILY IMPACTS HOW THE COURT SHOULD RULE ON THE MERITS
2
OF THIS CASE.
3
FOUND -- AND I THINK ITS FACTUAL FINDINGS ARE ENTITLED TO
4
GREAT WEIGHT AND SHOULD BE HONORED -- THAT AMAZON IS A PURELY
5
PASSIVE PARTICIPANT IN RELAYING SEARCH REQUESTS THROUGH
6
ITSELF TO GOOGLE AND THEN TRANSMITTING BACK UNALTERED THE
7
SIGNALS OR THE INSTRUCTIONS THAT ALLOW THE USER'S BROWSER TO
8
THEN ACCESS AND PULL UP WHATEVER MATERIALS THAT USER HAS
9
ASKED TO SEE.
BUT THE COURT SHOULD NOTE, AS THE COURT BELOW
10
AND I THINK THE BIG PICTURE HERE IS I THINK THIS
11
GOES TO THE FAIR USE ARGUMENT QUITE A BIT -- AND IT'S VERY
12
IMPORTANT TO KEEP IN MIND IS THAT THE INTERNET IS REALLY A
13
MODERN TOWN SQUARE.
14
AS WELL AS FOR COMMERCE.
15
YOU KNOW, IT'S A FORUM FOR PUBLIC DEBATE
IT'S GROWN PHENOMENALLY AT THIS POINT.
THERE ARE
16
ESTIMATED TO BE A HUNDRED MILLION WEBSITES OUT THERE.
17
LIKE A SMALL WORLD.
18
PAGES.
19
AND WE WOULD NOT BE ABLE TO FIND IT IF WE DID NOT HAVE SEARCH
20
TECHNOLOGIES SUCH AS PROVIDED BY GOOGLE AND OTHERS, LIKE
21
YAHOO.
22
IT'S
EACH OF THOSE WEBSITES HAS MULTIPLE
SO, IT'S A VIRTUAL WORLD THAT WOULD BE INACCESSIBLE,
THAT'S A VERY IMPORTANT THING TO KEEP IN MIND
23
BECAUSE THE RULE THAT'S BEING SOUGHT HERE BY THE PLAINTIFF IS
24
A RULE THAT WOULD VERY MUCH LIMIT THE ABILITY TO -- FOR
25
RESEARCHERS TO FIND THE SITES, TO FIND THAT WORLD THAT'S OUT
31
1
THERE, AND GET DIRECTIONS ON HOW TO GO THERE.
2
I THINK THE COURT BELOW HAD THAT CONCERN VERY MUCH
3
IN MIND WHEN IT WENT THROUGH ITS DETAILED ANALYSIS AND, FOR
4
VERY GOOD POLICY REASONS, ARTICULATED A SERVER TEST, WHICH I
5
THINK IS, AS MR. BRIDGES POINTED OUT, COMPLETELY CONSISTENT
6
WITH THE LEGISLATION -- WITH THE STATUTE, WITH 106 AND 101,
7
WHICH SAYS SPECIFICALLY THAT OBVIOUSLY YOU CAN'T BE LIABLE
8
UNLESS YOU ACTUALLY COPY AN IMAGE.
9
UNLESS YOU DISTRIBUTE THAT IMAGE.
10
YOU CAN'T BE LIABLE
YOU CAN'T BE LIABLE UNLESS
YOU DISPLAY -- CAUSE THE DISPLAY OF A COPY.
11
AND A COPY IS DEFINED IN SECTION 101 AS A PHYSICAL
12
THING.
13
THE ACT'S LANGUAGE ITSELF AND THE LEGISLATIVE HISTORY, WHICH
14
HAS BEEN POINTED OUT BY AMICUS AS WELL AS US, YOU CANNOT
15
DISPLAY A COPY UNLESS YOU HAVE A COPY.
16
17
IT IS STORED IN SOME FIXED MEDIA.
THE HONORABLE MICHAEL HAWKINS:
YOU CANNOT UNDER
YOU'VE GONE ABOUT
THREE MINUTES OVER YOUR SIDE'S TIME.
18
MR. JANSEN:
OKAY.
19
THE HONORABLE MICHAEL HAWKINS:
YOU CAN CONTINUE TO
20
ARGUE, BUT I WANT YOU TO KNOW I'M GOING TO GIVE THAT TIME TO
21
THE OTHER SIDE, WHATEVER YOU TAKE.
22
MR. JANSEN:
THAT'S FINE, YOUR HONOR.
23
I THINK WE'VE COVERED THE WATERFRONT HERE.
I
24
BELIEVE THAT THE COURT'S FINDINGS -- REALLY THE WHOLE GAMUT
25
OF WHAT THE COURT'S FINDINGS WERE WENT TO CONTRIBUTORY
32
1
INFRINGEMENT, WENT TO THE LACK OF CONTROL, WENT TO VICARIOUS
2
LIABILITY AND SECONDARY LIABILITY, CONTRIBUTORY LIABILITY
3
ISSUES.
4
COURT AS FACTUAL FINDINGS, WHICH THEY ARE.
5
I THINK THOSE FINDINGS SHOULD BE RESPECTED BY THIS
THE ONLY REAL LEGAL ARGUMENT I THINK -- OR LEGAL
6
DECISION WAS THE COURT'S DECISION REGARDING WHAT IS THE SCOPE
7
OF DIRECT INFRINGEMENT.
8
9
THE SERVER TEST IS APPROPRIATE.
AND THE NETCOM CASE I THINK ALSO WOULD SUPPORT THE
NOTION THAT ANY SYSTEM LIKE THE GOOGLE SEARCH ENGINE, BUT
10
CERTAINLY THE AMAZON SYSTEM, IS AN AUTOMATIC SYSTEM THAT IS
11
COMPLETELY CONTENT NEUTRAL.
12
INFRINGEMENT MACHINE.
13
LIKE A NAPSTER OR AN AIMSTER, WHICH WERE SYSTEMS THAT WERE
14
SET UP SPECIFICALLY TO AND WERE MARKETED TO ALLOW PEOPLE TO
15
COPY.
16
17
18
IT'S NOT USED AS A, QUOTE,
IT'S NOT LIKE A GROKSTER.
THAT WAS THE WHOLE PURPOSE OF NAPSTER.
IT'S NOT
THAT WAS
THE WHOLE PURPOSE OF GROKSTER.
SO, THESE CASES ARE VERY MUCH DIFFERENT FROM THE
19
SITUATION WE HAVE HERE WHERE, AS A VERY MINOR AND VIRTUALLY
20
MINUSCULE -- IN FACT, THE COURT FOUND THAT THERE WAS NO
21
EVIDENCE THAT ANY USER HAD ACTUALLY USED THESE SYSTEMS TO
22
INFRINGE COPYRIGHTS.
23
SITUATION THAT WOULD NOT INDICATE THAT SECONDARY LIABILITY IS
24
APPROPRIATE.
25
YOU HAD A COMPLETELY DIFFERENT
THE HONORABLE MICHAEL HAWKINS:
OKAY.
33
1
MR. JANSEN:
OKAY.
ONE LAST THING WHICH I DO WANT
2
TO POINT OUT IS THAT AMAZON DID SUBMIT EVIDENCE THAT IT'S
3
ENTITLED TO A SAFE HARBOR UNDER 512(A) OF THE DIGITAL
4
MILLENNIUM COPYRIGHT ACTS.
5
THE COURT BELOW DIDN'T REACH THAT ISSUE, BUT WE
6
BELIEVE THERE WAS UNDISPUTED EVIDENCE ACTUALLY SUPPORTED BY
7
THE COURT'S FINDINGS THAT WOULD MAKE US IMMUNE FROM LIABILITY
8
UNDER THAT STATUTE AS WELL.
9
THE HONORABLE MICHAEL HAWKINS:
10
MR. JANSEN:
11
THE HONORABLE MICHAEL HAWKINS:
12
REBUTTAL.
13
WITH EIGHT MINUTES ON THE CLOCK.
14
OKAY.
THANKS VERY MUCH.
THANK YOU.
YOU DON'T HAVE TO
USE IT, BUT YOU'VE GOT IT.
15
(LAUGHTER.)
16
MR. FRACKMAN:
17
DOES THE EXTRA TIME INCLUDE MR. BRIDGE'S REBUTTAL
18
19
20
I FEAR I MIGHT USE IT, YOUR HONOR.
TIME?
THE HONORABLE MICHAEL HAWKINS:
HIM ABOUT A MINUTE.
SO, GO RIGHT AHEAD.
21
MR. FRACKMAN:
22
PUT MY WHOLE RESPONSE IN CONTEXT.
23
I'M GOING TO GIVE
A LOT TO SAY, BUT I THINK -- LET ME
YOUR HONORS HAVE HEARD BOTH GOOGLE AND AMAZON ARGUE
24
ABOUT THE INTERNET AND ABOUT SEARCH ENGINES.
BUT THIS CASE
25
IS NOT ABOUT THE INTERNET, AND IT'S NOT ABOUT SEARCH ENGINES.
34
1
IT'S ABOUT ONE FUNCTION THAT MAKES INFRINGING COPIES FROM
2
INFRINGING WEBSITES AND DISPLAYS THEM.
3
ABOUT THE END OF THE INTERNET.
4
GOOGLE.
5
THIS CASE IS NOT
IT'S NOT ABOUT THE END OF
IT'S NOT ABOUT THE END OF SEARCH ENGINES.
IT'S ABOUT AN ASPECT OF THEIR BUSINESS THAT
6
INFRINGES COPYRIGHT, AND THAT IS ESSENTIALLY PUTTING OUR
7
CLIENT OUT OF BUSINESS.
8
9
THE HONORABLE MICHAEL HAWKINS:
YOUR ARGUMENT IS
THAT IF GOOGLE HAD A SECTION CALLED "GOOGLE AUDIO" THAT
10
ALLOWED PEOPLE TO DOWNLOAD MUSIC, THE FACT THAT THEY DO ALL
11
OF THESE OTHER THINGS WOULDN'T, SHOULDN'T DISSUADE A COURT
12
FROM FOCUSING ON --
13
MR. FRACKMAN:
YOU CAN'T JUSTIFY INFRINGEMENT BY
14
TELLING THE COURT HOW MUCH YOU DON'T INFRINGE.
15
APPEND INFRINGING CONDUCT TO NON-INFRINGING CONDUCT AND
16
JUSTIFY THE INFRINGING CONDUCT, ESPECIALLY WHEN IT'S
17
VOLITIONAL AND AVOIDABLE.
18
YOU CAN'T
THIS COURT ACTUALLY ALLUDED TO THAT IN THE NAPSTER
19
OPINION, WHERE NAPSTER ARGUED, GEE, WE'RE DOING A LOT OF GOOD
20
STUFF HERE.
21
DOING OTHER THINGS LIKE THAT.
WE'RE PROVIDING AN ACCESS FOR NEW BANDS.
WE'RE
22
AND HERE'S WHAT THIS COURT SAID AT 1019:
23
"PERMISSIVE REPRODUCTION BY EITHER INDEPENDENT
24
OR ESTABLISHED ARTISTS IS THE FINAL FAIR USE
25
CLAIM MADE BY NAPSTER.
THE DISTRICT COURT
35
1
NOTED THAT PLAINTIFFS DID NOT SEEK TO ENJOIN
2
THIS IN ANY OTHER NON-INFRINGING USE OF THE
3
NAPSTER SYSTEM."
4
WE DON'T INTEND TO ENJOIN ANY OTHER NON-INFRINGING
5
USE OF THE GOOGLE SYSTEM, YOUR HONORS.
6
NOW, WHILE I'M AT THAT POINT, AND AT THE RISK OF
7
SKIPPING OVER FOR THE MOMENT TO AMAZON AGAIN, ON THE FAIR USE
8
ISSUES, I'M GLAD THAT MR. BRIDGES REFERRED TO THE FINDINGS
9
THAT THE DISTRICT COURT MADE ON FAIR USE.
BECAUSE THE
10
DISTRICT COURT MADE FINDINGS SUPPORTED BY THE EVIDENCE THAT
11
THREE OF THE FOUR FAIR USE FACTORS SUPPORTED PERFECT 10.
12
THAT THE FOURTH FACTOR WAS NEUTRAL.
13
TOGETHER, DESPITE HIS RELUCTANCE -- AND I AGREE, THERE WAS
14
RELUCTANCE THERE.
15
IT PROPERLY TO THE DISTRICT COURT.
16
SAID THAT FAIR USE WAS NOT A DEFENSE IN THIS CASE, EVEN
17
PLACING, AS YOUR HONORS KNOW, THE BURDEN ON US TO PROVE FAIR
18
USE.
19
AND
AND PUTTING ALL OF THOSE
AND PERHAPS IT'S BECAUSE I DIDN'T EXPLAIN
DESPITE HIS RELUCTANCE HE
AND IN TERMS OF PUBLIC POLICY, YOUR HONOR, I AGREE
20
THAT THERE IS NO CASE THAT SAYS -- AND AS JUDGE MATZ SAID,
21
PUBLIC POLICY DOES NOT TRUMP THE FAIR USE FACTORS.
22
WOULD SUBMIT TO THE COURT THAT PUBLIC POLICY DOESN'T SUPPORT
23
GOOGLE ANYWAY.
24
25
BUT I
AS MR. BRIDGES SAID, THE PUBLIC POLICY BEHIND THE
COPYRIGHT ACT IS TO FOSTER CREATIVITY.
HOW DO YOU FOSTER
36
1
CREATIVITY IN SOMEONE LIKE PERFECT 10 WHEN YOU TAKE ALL OF
2
ITS IMAGES AND PUT THEM UP FOR FREE AND DRIVE IT OUT OF
3
BUSINESS.
4
YOU'RE DOING JUST THE OPPOSITE.
5
THIS CASE FAVORS US.
6
--
7
PUBLIC POLICY IN
ALL WE'RE ASKING THE COURT TO DO IS TO
THE HONORABLE MICHAEL HAWKINS:
DOES THE RECORD
8
SUPPORT YOUR STATEMENT THAT GOOGLE AND/OR AMAZON PUT UP ALL
9
OF PERFECT 10'S IMAGES?
10
MR. FRACKMAN:
11
12
WELL, WHAT THE SUPPORT IS -- THAT
WAS A LITTLE HYPERBOLIC, YOUR HONOR.
BUT WHAT THE SUPPORT IS
--
13
(LAUGHTER.)
14
MR. FRACKMAN:
15
BECAUSE WHAT THE SUPPORT IS IT IS DR. ZEDA'S
BUT ONLY A LITTLE.
ONLY A LITTLE.
16
UNCONTRADICTED DECLARATION THAT SAYS THAT THEY PUT UP THE
17
BEST OF PERFECT 10'S IMAGES.
18
THOSE NUMBERS ARE IN OUR PAPERS.
19
20
21
22
23
AND AS THE COURT KNOWS -- AND
IT'S SOMETHING LIKE 1500
-THE HONORABLE MICHAEL HAWKINS:
THAT'S FINE.
YOUR
ADMISSION OF HYPERBOLE ANSWERS MY QUESTIONS.
THE HONORABLE SANDRA IKUTA:
ARE YOU TALKING ABOUT
THUMBNAILS OR THE FULL SCALE?
24
MR. FRACKMAN:
FOR?
25
THE HONORABLE SANDRA IKUTA: -- THE FULL-SIZE
37
1
IMAGES.
2
MR. FRACKMAN:
3
THE HONORABLE SANDRA IKUTA:
4
DISTRICT COURT WAS ADDRESSING THE THUMBNAILS --
5
MR. FRACKMAN:
ON THE FAIR USE ISSUES?
RIGHT.
BECAUSE THE
THE DISTRICT COURT WAS ADDRESSING
6
THE THUMBNAILS, BUT I WOULD SUBMIT TO THE COURT THAT -- I
7
DON'T KNOW WHAT THE RIGHT LATIN WORD IS -- "A PRIORI."
8
THE THUMBNAILS ARE NOT FAIR USE, AND IF THIS COURT FINDS AS
9
WE ASK THAT THERE'S A DISPLAY OF THE LARGE-SIZE IMAGES, THEN,
10
THE LARGE-SIZE IMAGES CANNOT BE FAIR USE.
11
12
THE HONORABLE MICHAEL HAWKINS:
MR. FRACKMAN:
A FORTIORI.
THANK YOU, YOUR HONOR.
I ALWAYS LEARN SOMETHING WHEN I COME TO THE NINTH CIRCUIT.
15
AMAZON, IF I MAY FOR A MOMENT -- OH, ONE OTHER
16
THING.
17
OF JUMPING BACK AND FORTH.
18
19
THE RIGHT WORD
WOULD BE "A FORTIORI."
13
14
IF
LET ME GO BACK TO THE LARGE-SIZE IMAGES AT THE RISK
MR. BRIDGES SAID SOMETHING VERY INTERESTING.
HE
SAID SHOWING A COPY IS WHO IS CAUSING A DISPLAY.
20
WELL, THAT'S PRECISELY RIGHT.
WHO IS CAUSING THE
21
DISPLAY HERE.
IT'S GOOGLE THAT'S CAUSING THE DISPLAY.
IT'S
22
THEIR CODE.
23
THE USER'S BROWSER -- THE UNDERLYING WEBSITE IS NOT CAUSING
24
THE DISPLAY.
25
LIABLE.
THEY'RE THE ONES WHO ARE CAUSING THE BROWSER,
IT'S A LINK IN THE DISPLAY, AND IT CERTAINLY IS
38
1
BUT THIS PARTICULAR DISPLAY ON THE SECOND PAGE OF
2
GOOGLE AND THE WAY IT'S DISPLAYED IS CAUSED BY GOOGLE.
3
THEY'RE TELLING THE USER'S BROWSER WHERE TO GO TO TO STAY
4
TETHERED, AT LEAST ON THE TOP, TO GOOGLE AND TO DISPLAY THAT
5
IMAGE.
6
LEGISLATIVE HISTORY AS HAVE THE AMICUS BRIEFS ON THAT,
7
INCLUDING THE PHOTOGRAPHER'S BRIEF.
THAT'S THE DEFINITION.
AND WE'VE CITED LENGTHY
ONE OF WHICH IS:
8
"ANY ACT BY WHICH THE INITIAL DISPLAY IS
9
TRANSMITTED, REPEATED, OR MADE TO RECUR
10
WOULD ITSELF BE A DISPLAY."
11
THAT'S THE HOUSE REPORT THAT WE CITED.
12
NOW, AS TO AMAZON, YOUR HONOR -- BY THE WAY, AMAZON
13
ARGUED THAT IT'S NOT DISPLAYING A COPY.
14
COPY.
15
IT WAS A COPY FROM AN UNDERLYING INFRINGING WEBSITE.
16
AN INFRINGING COPY.
17
18
19
OF COURSE IT'S A
IT'S A COPY FROM -- THERE WAS NO DISPUTE ABOUT THAT.
IT WAS
IT WASN'T FROM PERFECT 10.
HERE'S AMAZON'S BASIC PROBLEM I THINK, YOUR HONOR,
IN A NUTSHELL -- AND IN A MINUTE AND A HALF I HOPE.
THEY ARE PAYING GOOGLE TO DO SOMETHING THAT THEY'RE
20
NOT DOING THEMSELVES.
YOU CANNOT EVADE LIABILITY BY PAYING
21
SOMEBODY TO DO SOMETHING THAT IS INFRINGING AND THEN TO
22
DISPLAY BY PAYING THOSE IMAGES BECAUSE THEY DO -- AND I REFER
23
THE COURT -- THERE'S ANOTHER ANOMALY IN THE DISTRICT COURT'S
24
OPINION -- IF THE COURT LOOKS -- COMPARES ERG 1030, WHICH ARE
25
THE THUMBNAILS THAT GOOGLE PROVIDES, WITH ERG A423, YOU WILL
39
1
SEE THAT THE GOOGLE THUMB- -- THAT THE THUMBNAILS THAT ARE
2
DISPLAYED BY AMAZON ARE ESSENTIALLY EXACTLY THE SAME, NOT
3
SURPRISING, AS THOSE THAT ARE DISPLAYED BY GOOGLE, IN MORE OR
4
LESS THE SAME FORMAT, EXCEPT THAT THEY PUT THEIR OWN LOGO ON
5
IT AS ARE THE FULL-SIZE IMAGES.
6
BUT FOR THE THUMBNAILS, THAT DISPLAY BY GOOGLE IS
7
DIRECT INFRINGING.
8
AT ALL, DIRECT OR SECONDARILY.
9
PROVIDING ITS AUDIENCE WITH THOSE IMAGES.
10
THE DISPLAY BY AMAZON IS NOT INFRINGING
EVEN THOUGH IT'S ALSO
SO, I WOULD SUBMIT TO THE COURT THAT YOU CANNOT --
11
YOU CANNOT AVOID THE COPYRIGHT LAW, EITHER DIRECT OR
12
SECONDARY, BY SIMPLY PAYING SOMEBODY ELSE.
13
AND AMAZON, AS WE POINTED OUT IN OUR BRIEF, AND IF
14
I CAN END ON THIS, IT IS NOT A 512(A) SERVICE PROVIDER.
15
THAT'S FOR AN INTERNET BACKBONE.
16
THEY'RE NOT AN INTERNET BACKBONE.
17
HERE.
18
THESE INFRINGING IMAGES TO THEIR CONSUMERS IN ORDER TO GET
19
THEM TO BUY STUFF FROM AMAZON.
20
THAT'S FOR VERIZON.
THEY'RE AN INTERMEDIARY
AT THE VERY LEAST THEY'RE AN INTERMEDIARY CONVEYING
AND I'M SURE I'VE LEFT OUT A LOT OF STUFF, YOUR
21
HONOR, BUT I THINK IT'S ALL IN OUR BRIEFS ANYWAY.
22
WOULD BE HAPPY TO ANSWER ANY OTHER QUESTIONS THAT THE COURT
23
HAS.
24
25
THE HONORABLE MICHAEL HAWKINS:
THANK YOU VERY MUCH FOR YOUR ARGUMENT.
ALTHOUGH I
I DON'T SEE ANY.
40
1
MR. FRACKMAN: THANK YOU, YOUR HONOR.
2
THE HONORABLE MICHAEL HAWKINS:
3
HALF.
4
5
A MINUTE AND A
MR. BRIDGES:
THANK YOU, YOUR HONOR.
I'LL BE
BRIEF.
6
FIRST, I'D LIKE TO POINT OUT THAT EVEN IF THE
7
DISPLAY RIGHT IS IMPLICATED HERE, THE FAIR USE ARGUMENTS THAT
8
GOOGLE MAKES WOULD APPLY TO THAT AS WELL AS TO THE
9
THUMBNAILS, WHICH WE'VE ARGUED EARLIER.
10
BUT BECAUSE THE DISTRICT COURT FOUND THAT THE
11
FRAMING OF WEBSITES DID NOT CONSTITUTE A DISPLAY, FAIR USE
12
WOULD BE AN ADDITIONAL GROUND TO AFFIRM THE DISTRICT COURT ON
13
THAT.
14
GOING BACK TO MR. FRACKMAN'S QUESTION, WHO'S
15
CAUSING THE DISPLAY.
16
IT'S NOT ANY LINK IN THE CAUSAL CHAIN.
17
GOOGLE IS PROVIDING ONLY A LINK FOR THE FRAMED WEBSITE TO
18
APPEAR.
19
WOULD CLICK ON ANY HYPERLINK.
20
TRANSMIT THE PAGE TO THE USER.
21
THE QUESTION IS, WHO IS DISPLAYING.
WHO IS DISPLAYING.
THE USER MUST CLICK ON THAT LINK THE SAME WAY A USER
AND, THEN, THE WEBSITE MUST
IT IS THE WEBSITE'S DISPLAY.
IF THE WEBSITE -- IF GOOGLE'S LINK WAS OUTDATED,
22
THAT WEBSITE WOULD NOT TRANSMIT THAT PAGE TO THE USER.
23
GOOGLE IS JUST PROVIDING THE INDEX.
24
25
THE HONORABLE MICHAEL HAWKINS:
IS THAT DIFFERENT FROM NAPSTER?
IN THAT RESPECT HOW
41
1
MR. BRIDGES:
NAPSTER -- NAPSTER WAS DOING
2
SOMETHING VERY DIFFERENT.
3
PEOPLE.
4
NAPSTER ACTUALLY --
AND GOOGLE DOES NOT ACTUALLY CONNECT PEOPLE.
5
6
THE HONORABLE MICHAEL HAWKINS:
MR. BRIDGES: -- PUT THEM TOGETHER.
YES, YOUR
HONOR.
9
10
PHYSICALLY PUT THEM
TOGETHER.
7
8
NAPSTER WAS ACTUALLY CONNECTING
THE HONORABLE MICHAEL HAWKINS:
ALL YOU DO IS PUT
UP THE LINK?
11
MR. BRIDGES:
WE PROVIDE A LINK, AND SOMEBODY --
12
THE BROWSER HAS FUNCTIONS THAT READS LINKS.
13
USER'S INITIATIVE THE BROWSER FETCHES.
14
USER/BROWSER COMBINATION THAT ACTS UPON THE LINK, WHICH IS
15
THE REFERENCE GOOGLE PROVIDES, FOR THE BROWSER TO SUMMON THE
16
WEBSITE TO TRANSMIT IT TO THE USER.
17
AND UPON THE
BUT IT'S THE
SO, THAT IS THE WEBSITE.
AND I MUST SAY THERE IS NO PRINCIPAL DIFFERENCE
18
BETWEEN A FRAMING HYPERLINK AND A REGULAR HYPERLINK.
19
A HYPERLINK BECOMES A DISPLAY, THE ENTIRE STRUCTURE -- AND
20
THIS IS NOT HYPERBOLIC -- THE STRUCTURE OF INTERNET
21
REGULATION, THE FACT THAT IT IS NOTHING BUT A MASSIVE
22
COLLECTION OF LINKS, SUDDENLY EVERY PARTICIPANT IN THE
23
INTERNET'S SYSTEM OF LINKS GETS IMPLICATED UNDER THE DISPLAY
24
RIGHT.
25
AND IF
AND THAT IS UNTENABLE.
JUST TO FINISH WITH ONE THING.
MR. FRACKMAN MADE
42
1
THE INJUNCTION SOUND INNOCUOUS BY SAYING, WELL, WE'RE JUST
2
TRYING TO ENJOIN THIS.
3
WHAT THE DISTRICT COURT ENJOINED FOR REASONS I DO
4
NOT DISCUSS IN OPEN COURT BECAUSE THEY'RE HIGHLY
5
CONFIDENTIAL, BUT THEY'RE SUPPORTED IN THE HIGHLY
6
CONFIDENTIAL FIFTH VOLUME OF OUR EXCERPTS OF RECORD.
7
INJUNCTION ORDERED BY THE DISTRICT COURT WOULD HAVE A DRASTIC
8
EFFECT ON GOOGLE.
9
THE
IT IS NOT -- NOT TRIVIAL.
SO, IN CONCLUSION, THE DISTRICT COURT GOT MANY
10
THINGS RIGHT IN THIS CASE.
11
RIGHT AS APPLIED TO THE FRAMING, ASTUTELY ANALYZED THE
12
DISTRIBUTION RIGHT, THE SECONDARY ISSUES.
13
IT ASTUTELY ANALYZED THE DISPLAY
IT DID MAKE ERRORS IN THOSE THREE WAYS I HAD
14
DISCUSSED EARLIER.
15
COURT FOUND ITSELF ACTING IN CONTRADICTION TO THE LEADING
16
CASES, ESPECIALLY CAMPBELL VERSUS ACUFF-ROSE.
17
THOSE WERE ERRORS OF LAW BECAUSE THE
AND ON THAT GROUND THIS COURT SHOULD REVERSE THE
18
DISTRICT COURT, VACATE THE INJUNCTION, AND AFFIRM THE REST OF
19
THE DECISION.
20
THE HONORABLE MICHAEL HAWKINS:
THANK YOU.
21
THANK YOU BOTH FOR EXCELLENT ARGUMENTS.
THIS IS A
22
VERY DIFFICULT CASE.
23
AMICI WERE ESPECIALLY GOOD AND ESPECIALLY HELPFUL ON BOTH
24
SIDES.
25
ALL OF THE BRIEFS WERE VERY GOOD.
AND WE'LL SEE IF WE CAN GET IT RIGHT.
WE DON'T
THE
43
1
KNOW IF IT WILL BE PERFECT OR NOT, BUT WE'LL TRY TO GET IT
2
RIGHT.
3
THANK YOU VERY MUCH.
4
MR. BRIDGES:
CAN I JUST POINT OUT TO THE COURT
5
BECAUSE I DIDN'T HAVE A CHANCE TO ARGUE IT, THAT THIS WHOLE
6
ISSUE OF HYPERLINKING AND IN-LINE LINKING AND FRAMING IS
7
ADDRESSED IN OUR BRIEF.
8
THE HONORABLE MICHAEL HAWKINS:
9
THANK YOU.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
WE UNDERSTAND.
THE CASE JUST ARGUED WILL BE SUBMITTED FOR
DECISION.
AND THE COURT WILL STAND IN RECESS FOR THE DAY.
(PROCEEDINGS CONCLUDED.)
44
1
C E R T I F I C A T E
2
3
I CERTIFY THAT THE FOREGOING IS A CORRECT
4
TRANSCRIPT FROM THE ELECTRONIC SOUND RECORDING OF THE
5
PROCEEDINGS IN THE ABOVE-ENTITLED MATTER.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
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______________________________
FEDERALLY CERTIFIED TRANSCRIBER
DOROTHY BABYKIN
___________
DATED