In the 1970s, an adult cinema in Dallas claimed it had the right to show a pirated copy of Behind the Green Door because the movie was so lewd it could not legally be copyrighted.
The cinema lost when a federal appeals court ruled that the film, which featured Marilyn Chambers in a then-novel scene of interracial sex, nevertheless was fully covered by federal copyright law.
In an unusual twist, Google recently echoed that argument when defending its reproductions of professional photographs of scantily-clad women through its popular image-search feature. Google claimed the photographs are not "creative" enough to enjoy copyright law's full protections because they're intended primarily for "sexual gratification". A federal court rejected that claim earlier this year.
That lawsuit is not an aberration. As Google becomes more deeply interested in books and video, and expands its search domain beyond Web pages, it has found itself increasingly at odds with established copyright industries including book publishers, journalists and professional photographers. In addition, its keyword advertising has antagonised some trademark holders, though Google did prevail against Geico in a dispute two years ago.
"It's part of their absolutist approach," said Joshua Kaufman, an attorney representing Agence France-Presse in the wire service's copyright dispute with Google. "I think they're afraid that if they give an inch, it becomes a slippery slope. It's all or nothing."
Some spats between copyright holders and Internet companies are inevitable. Search engine operators would like to index, sort and regurgitate photographs, videos and text found on the Web without forking out for licensing fees. Copyright holders, on the other hand, want to make more money from their content.
And some disputes do settle amicably. On Wednesday, the Associated Press announced that it had resolved a dispute with Google over the use of its headlines and photographs.
For its part, Google says it values copyright and points out that it allows copyright holders to opt out of having their content included in the company's search products. Copyright holders, however, say it's impractical for millions of people to opt out of hundreds of search engines. Still, Google says its expectations are reasonable.
"People kind of forget that we have a lot of our own copyrights to protect and that copyright law is a big part of that protection," said Alexander Macgillivray, a lawyer at Google. "We're a search engine that exists and knows it exists only because of the tremendous impact of creators."
In one recent case, a Nevada man named Blake Field had written a collection of short stories and then sued Google, claiming his stories had been unlawfully offered as cached versions without his explicit permission.
Google's attorneys responded by questioning whether Field's stories should enjoy the highest degree of copyright protection. The stories are "minimally creative works", represent "simply" Field's "ramblings" and "are certainly not works that are deserving of any enhanced protection", Google said. Its attorneys added that Field had "spent only three days" writing the stories.
"Factual nature" of nudes
To a large extent, Google was required to make that argument because of the way the litigation process works. Part of the fair use analysis that judges undertake depends on the "nature" of the copyright work — and important works, especially those that are unpublished, can tilt the balance in favour of the copyright holder.
"The thing that we didn't want was for the judge to make a presumption that would warrant him giving more protection under fair use than would be standard," said Google's Macgillivray.
Google made the same argument in its ongoing lawsuit with Perfect 10, claiming the Web site's high-quality nude images were not especially creative because its site "implies a factual nature of the photographs".
Even some copyright scholars who are generally sympathetic to Google and the technology industry say that was a bit of a stretch.
Jessica Litman, who teaches at the University of Michigan Law School and wrote the book Digital Copyright, called Google's argument over nude images "silly".
US District Judge A. Howard Matz went further, saying Perfect 10's "photographs consistently reflect professional, skilful, and sometimes tasteful artistry. That they are of scantily-clad or nude women is of no consequence; such images have been popular subjects for artists since before the time of 'Venus de Milo'".
Google did not try to renew that argument in its appeal brief filed last month.
Litman said, however, that these cases are "high stakes" for the company. "If Google is wrong about fair use, it probably has to go out of business," she said.
To be sure, any company as successful as Google will be slapped with its share of nuisance lawsuits, some of which are only attempts by so-called "copyright trolls" to win a litigation jackpot. A bizarre lawsuit in Pennsylvania was filed…
