Re-Examining Perfect 10 and its Impact on News Publishers

In 2007, the Ninth Circuit ruled in the Perfect 10 case that Google’s display of thumbnail photographs in its search engine results constituted fair use under the Copyright Act. The decision was the leading case that defined a generation of copyright law regarding search engines and news aggregators.  Some thirteen years later, the platforms make widespread use of news content in search engine results and news apps.

Many news publishers feel that search engines and news aggregators are not fairly or appropriately compensating them for the value of their material, and that publishers have sometimes been forced into granting a search engine the apparent right to make vast uses of their intellectual property if they wish to be included in search results and other services.  Search engines and aggregators defend their actions and argue that they provide substantial and valuable traffic to news publishers, and that such uses qualify as fair use.  They also point out that web publishers are free to opt out of having their content indexed and, if they do elect to have it indexed, to control how it appears in results through simple HTML markup protocols.

The panel will include different perspectives and examine various questions about Perfect 10’s legacy. These include the following: what were the broad ramifications of the Perfect 10 decision?  What benefits has it brought about?  What problems?  In retrospect, was the decision properly decided in 2007?  Do search engine’s and news aggregator’s use of news content today still qualify as fair use under Perfect 10?  Are those uses qualitatively different than those blessed in the Perfect 10 case, or essentially the same?  What uses of news content by search engines and aggregators should qualify as fair use?

Speakers:

Annemarie Bridy
Copyright Counsel, Google

Tom Curley
Associate General Counsel, Gannett Media Corp.

Scott Hemphill
Moses H. Grossman Professor of Law, NYU Law School and Co-Director of the Engelberg Center on Innovation Law & Policy

Linda Steinman (Moderator)
Partner, Davis Wright Tremaine LLP