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[ShadowFox]

Norman Zada is CEO of Perfect 10, which publishes a print magazine and a subscription-only Web site showing nude photos of models under exclusive contracts. On Wednesday, his lawyers asked a U.S. District Court in Los Angeles to order Google to stop showing images of Perfect 10 models.

Zada sued Google in November 2004, after Google allegedly ailed to respond to 34 notices under the Digital Millennium Copyright Act (DMCA). Zada's beef with Google's image search was that most results led not to Perfect 10, but to rogue sites that posted unauthorized copies of his images.

Google's point of view, as expressed in an e-mail provided to internetnews.com, was that he should take his complaint to the offending publishers.

"Google is a provider of information, not a mediator," read the e-mail, signed by "The Google Team." It went on, "Even if we were able to eliminate the offending page from our index, it would still be on the Web. Every few weeks, our robots sweep the Web for content. If the site is still available on the Web when we crawl, we will likely pick it up and add it to our index again."

Instead, Zada sued Google, bringing a similar suit against Amazon.com's (Quote, Chart) A9 search engine in July 2005. He said he sued the search engines rather than the infringing Web sites because many of the latter are overseas and close to impossible to shut down.

A Google spokesman said, "We believe the lawsuit is without merit, and we will defend against it vigorously."

The case hinges on two previous court decisions: Kelly vs. Arribasoft and MGM vs Grokster. The attorney handling Perfect 10's case is Russell Frackman, the attorney who represented the record companies in the Grokster suit.

Arribasoft launched Arriba Vista in November 1998 as the first search engine for Web-based images. "Arriba Vista provides unique search capabilities including quick viewing of millions of thumbnails and direct access to the specific page of the Web site where each visual is located," the company press release said.

Photographer Lesley Kelly sued Arribasoft for copyright infringement. He complained Arriba Vista, later called ditto.com, was improperly making money by showing advertising against thumbnails of his photographs. The court ruled that the image search engine's display of thumbnails constituted fair use.

Zada said there were three crucial differences between Kelly's case and his. First, Kelly's images were on view on his Web site for free, while Perfect 10 charges $29.95 a month to view images. "Google is giving away what we sell," he said.

Denise Howell, an intellectual property attorney with the law firm of Reed Smith, said, "These folks know what they're doing, and they're playing for high stakes. The arguments they're making are ambitious." She said Perfect 10's lawyers would have an uphill battle trying to prove that the Ninth Circuit Court's ruling on thumbnails shouldn't apply.


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Source: internetnews.com