SIVACRACY.NET

In a very troubling development, a Los Angeles federal judge ruled against Google in a case over thumbnails.

A porn company claimed that it had developed a market for thumbnails -- mobile phone images -- and that by copying and indexing the images Google had infringed on its copyrights.

This case seems to contradict the important and sweeping precedent in Kelly v. Arriba Soft, in which the 9th Circuit Court of Appeals ruled that thumbails were fair uses of copyrighted images for the purpose of generating search engines.

This precedent generated the Web norm of "opting out" of the search engine database in digital space.

Of course, Google's entire defense in the lawsuits against its library project rests on the presumption that Kelly is settled law. But, as I have been saying for about a year, it is not. The Second Circuit, where the Google cases will be heard, has no love lost for Kelly. And it has issued more relevant precedents that count against Google.

My big fear all along has been that the Second Circuit would ignore Kelly, favor its own precedents in UMG v. MP3.com and New York Times v. Tasini, and force the Supreme Court to choose between circuits and precedents. Knowing how the Supreme Court thinks about copyright these days, I feared all along that Google was inviting its own death by forcing the courts to overturn Kelly

Now the Ninth Circuit must reconcile this lower court decision with its own precendent in Kelly. How it does so will go a long way in determining the future of search engines and the Web in general. Let's hope the Ninth Circuit simply strikes down this decision.

I will be talking about this on Xeni Jardin's NPR Day to Day segment today.