Why search porn for free, when you can pay for it?

When Perfect 10, a soft porn publication which limits access to its porn collection to paying users, sued Google for infringement --- saying that in displaying images taken from its porn site in the search results of Google images, Google violated its property rights, and therefore should be liable to pay damages, --- the latter vigorously denied the allegations. Unluckily for Google, it lost, and was ordered by the court to desist from displaying images as thumbnails in its search results which have originated from Perfect 10's site.

We are not very big fans of porn (we prefer the real thing, hehehe) but somehow we find this decision inadequate, if not unconvincing. After a closer look at the facts and the peculiar circumstances of the case, we are of the position that Google should not be held liable for the acts complained of. Allow us to elucidate.

The images used by Google for its search results do not give users and viewers unauthorized access to Perfect 10's sites. How and why? Google browses through the whole Web for images which it may add or include in its search results -- it has every reason to do so, because more image results means better service as a search engine, which is its main and primary function. The images allegedly owned by Perfect 10 and used by Google in its search results, were taken from some other "third party" sites -- usually sites owned by persons who either have access to the site or have gained access to the site. These persons are usually authorized, paying users of the porn site since access is limited, and upon gaining access to the site, are free to view, save and download said images and other media either into his own computer or his own site online. Google is then able to gain access to the images in the latter situation, and these are the images which it uses as thumbnails for its search results.

We're not so sure, but "our friends say" (hehe, a.k.a. "rumor has it") that most porn sites share data, images and media, and oftentimes link to one another. However, there are also some who come up with original material, which may be viewed only by paying users. The copyright of the said material could be explicitly stated in the porn site itself, and the user is given notice of this upon gaining access to the "goodies" of the site. In this situation, a contract is actually perfected -- the user pays for the access to the site and its content, while the site allows access for monetary consideration, and subject to the conditions and restrictions of copyright and other IP-related conditions. In several cases, however, the user downloads the said images and posts them somewhere in the Web, usually in his own site or online photo album. This act could actually be characterized as infringement, because the user in effect made the said copyrighted images available to the public. When Google uses these images for its image search results, it may not be aware of its original source, or the fact that it is copyrighted. Only the paying user usually knows this. In effect, Google is not "privy" to the contract entered into by the user and the porn site. Therefore, it can be said that it is not bound the said conditions, and thus may not be held liable for whatever damage incurred by the site.

Google is merely a search engine. With the vastness of the world wide web, Google plays a vital role in making surfing the Net easier. Instead of surfers and users endlessly typing urls and website addresses, Google makes things significantly more convenient by providing the links to the said sites, images and the like, and all the user has to do is click. Yes, it is possible that porn sites such as Perfect 10 are prejudiced by this, especially because its paying users, perhaps in the desire to make the most of what they're paying, download or find a way to save the images and other media to their own computer or online database. It is usually through these sites that Google is able to acquire the said images, and use them as thumbnails in the search results. Given this scenario, if there's anyone guilty of infringement or of making the copyrighted images available to the public, it is the user who was able to access the site and afterwards posted the images online, not Google. That user was the one aware of the conditions imposed by the site, not Google. Google is not there to showcase porn like the porn site does... We think its function is to merely let the viewing public know that such an image exists, and may be found somewhere on the Web.

We believe the decision of the court in this case sets a dangerous precedent.