The Volokh Conspiracy

"The court adopted a physical/external perspective rather than a virtual/internal one, basing its rule on how computers actually work rather than the impressions held by casual users"

Hmm...might this framework explain the majority/dissent divide in Microsoft v. AT&T a couple of weeks ago? The majority held, sort of, that an instantiation of Windows on a computer is not a "component"; Alito wrote, more specifically, that components had to be physical; he thus came down squarely on the "physicalist" (or "literalist"--hence Alito's quotations from dictionaries from the '60s and '70s--or "objectivist"). Stevens, in dissent, wrote: "if a disk with software inscribed on it is a 'component,' I find it difficult to understand why the most important ingredient of that component [Windows] is not also a component." He is a virtualist (or "metaphorist," or "userist," or "subjectivist").

Of course the internet is a physical thing, our Congressmen claim that it is "a series of tubes!"

The internet is a lot more than just physical computers, servers, and the wires/lightwaves that connect them.

The court adopted a physical/external perspective rather than a virtual/internal one, basing its rule on how computers actually work rather than the impressions held by casual users.

Please, more detail! I beseech you to chew up this portion of the opinion into easily digestible bits and regurgitate them into my yawning metaphorical law-hatchling mouth!

With respect to the full-size images, the court is not so much taking a physical approach as it is rewriting the statute. The court reads in a requirement that to display a copy, you must own a copy. Under this requirement, the physical approach is the only one that makes any sense.

As to the thumbnail images, I reach the exact opposite conclusion. The court's take on things is virtual, not physical.

The court finds that Google "displays" an image when it sends the stream of bits which are then rendered into an on-screen image by the end user's computer. At a physical level, this is clearly erroneous, even when using the broad definition of "display" contained in the statute.

A physical approach to the facts of this case would ignore 17 U.S.C. 106(5) entirely and focus on 106(1) (reproduction) and 106(3) (distribution of copies). Instead, the court does base its rule on the impressions of casual users. "I did an image search, and Google displayed a bunch of thumbnails for me." Mixing up transmission and display is a completely understandable casual user mistake, because the display happens immediately after the transmission.

What if Google were instead mailing out floppy diskettes with copyrighted image files on them? Users would submit a search query at Google's site, and an automated process would write the resulting image files to a diskette and send it by mail, free of charge. Once a user puts the diskette in his computer and renders an image file, is Google publicly displaying the image? Of course not. To answer otherwise would render the reproduction and distribution portions of the statute pointless.

I'm not saying that the rule in this case is a bad one. It falls right into line with how we treat existing technologies. If a television station airs a movie which it has not obtained a license for, it would be silly to allow a defense of "We didn't display the movie. We simply transmitted AM/FM signals. Our audience's TV sets were doing the actual displaying."

Brooks P.,

The thumbnail issue is a question of fair use. It's undisputed that Google reproduces and distributes the thumbnail images - low quality approximations of the original. The court looked at use, character, context and quality (among other factors) in determining if this was a valid fair use. Fair use is, unfortunately, a fuzzy topic. The intended use of the thumbnails is a supplement to search results to help a user find what they were searching for. They also have little value outside of that context.