My FindLaw column for today (available here) discusses a recent Ninth Circuit ruling (available here) reversing a preliminary injunction against Google's image search engine on the ground that its thumbnail images infringed the copyright of the owners of the originals of those images. The 9th circuit found that the thumbnails were fair use, at least absent a specific showing that their economic impact on the owner's business---a porn website which also delivered low-res pics to cell phones---outweighed the transformative nature of the thumbnails when used as part of the image search on a conventional computer. The court also found no prima facie case of infringement from Google's "framing" of images from infringing websites, where those images resided on the infringers' servers rather than Google's. In other words, it applied what the district court called the "server test."
If that went by too quickly, read the column, which explains these issues in much greater detail. Actually, read the column no matter what. It's right here. Go ahead, read it. I'll wait.
Okay, glad to have you back. Anyway, as you now know from reading the column, I suggest there that the server test makes it too easy for copyright scofflaws to appropriate images without running afoul of the law, simply by embedding links to licensed images on other sites. My colleague Tim Wu points out that this is true but also agreed with my suggestion (not made in the column but available exclusively here on Dorf on Law!!!) that there ought to be a technological way to avoid this problem. If you don't want Google to index and/or cache your site, you just need to include a line of code so stating. As I discussed a while back (in a post here), a Belgian court has ruled that this opt-out system insufficiently protects copyrighted material, but Tim disagrees. He notes that the vast majority of site operators want to be findable by Google, and so a Googlable default makes sense.
That works if you're worried about Google but what if you're worried about every tom, dick and harry with a blog borrowing your content? One possibility would be a legal rule that says that use of the Google-don't-cache-my-page code also makes it illegal for anybody else to frame your content without specific permission, even if they don't copy your material onto their server. Absent such a rule, owners of copyrighted material may resort to self-help, embedding encryption in images and other content to prevent them from displaying when framed by non-licensed sites.