back to article Azure consultant to sue Google for linking his cached pics to cloned site, breach of copyright

London’s High Court has given the go-ahead for a Microsoft Azure consultant to sue Google because having the world's most widely used search engine caching images from his website - and hotlinking them to aggregator sites rather than his own - allegedly infringes his copyright. Christopher Wheat, who bills himself on Linkedin …

  1. ma1010 Silver badge
    Paris Hilton

    I don't understand all the ramifications, but...

    Are they going to outlaw Google showing any kind of images because "copyright"? Will they outlaw the Wayback Machine for caching images? Once you open the door to this sort of madness, where does it stop?

    Paris because I'm confused. BTW, if this goes forward, will Paris sue El Reg for copyright violation for having her likeness on the icon?

    1. Steve Graham

      Re: I don't understand all the ramifications, but...

      You don't own a copyright to your face. You have copright to something you created. The potential sue-ee of The Reg is therefore the photographer, if the paper hasn't obtained the requisite rights, which, being a professional news organisation, I'm sure they have.

      I think you've misunderstood the article anyway. The claim is that Google hotlinked the copyright images to a copy, fake site, depriving the owner of web traffic and revenue.

      1. Anonymous Coward
        Anonymous Coward

        Re: I don't understand all the ramifications, but...

        >You don't own a copyright to your face. You have copright to something you created. The potential sue-ee of The Reg is therefore the photographer, if the paper hasn't obtained the requisite rights, which, being a professional news organisation, I'm sure they have.

        Unless it is a picture of a model, in which case the model retains copyright unless a waiver is signed.

        1. Anonymous Coward
          Anonymous Coward

          Re: I don't understand all the ramifications, but...

          Is that true? Do you have any links to corroborate that? Does that apply to photos taken in a public place - if so, how do I identify whether anyone in shot is a "model"? And what qualifies one as a model anyway (other than being blessed of better looks and physique than me)? And does this apply in any setting - so if a model attends a friend's wedding, does s/he own the copyright to the wedding photog's images simply because s/he once posed for a photo that appeared in a local charity fashion catalogue for the village church roof fund?

          And why (if it exists) would such a rule be created and enforced for only people of one profession? Why not movie stars or the lady who came to fix my boiler?

          Or (as usual) have I misunderstood your post?

          1. eldakka Silver badge

            Re: I don't understand all the ramifications, but...

            Is that true? Do you have any links to corroborate that?

            It can be true in some jurisdictions.

            California has state-law publicity rights (or something like that). That is, in effect, a 'famous' person can claim publicity rights in themselves personally. So that someone taking a photo of such a person could be breaching that persons publicity rights. Therefore, by extension, a model could, especially if a famous one ('supermodel'), in California, fit the OPs description.

            Many cases around computer games including likenesses of famous people, especially sports starts, are a constant thing in the US. You'd have to Google it, but many sports stars are or have sued sports computer games for including their likenesses without permission, which is pretty hard to avoid if you are making a sports 'simulation' game of current sports teams, a sort of fantasy league football where you get to play the teams you create in the game.

          2. FuzzyWuzzys

            Re: I don't understand all the ramifications, but...

            "Does that apply to photos taken in a public place..."

            You do not and cannot own copyright to your face, copyright is for created "man-made" works. What you have is "personality rights". I can take your picture in a public place but I cannot use your face in commerical, publicity or promotional campaigns without you allowing me to. Models sign waiver rights, the "model release" that allows their face to be used for commercial or promotional purposes. I can ask you to sign a "model release" should I want to use your image used for commercial advertising and if we agree terms I might well have to pay you for that privilege depending upon the contract we draw up.

            However I can take your photo in a public place without your permission and sell it as art in digital and print form, so long as I do not endorse or promote any products or services. I can also use images of your face captured in a public place for editorial use, that includes news and purely educational materials that explain something but do not promote any service or product. The reason is that if we needed "model releases" for every situaiton, CCTV would be outlawed as well as street photography, news, art, all sorts of "non-exploitative" works.

            1. Jellied Eel Silver badge

              Re: I don't understand all the ramifications, but...

              You do not and cannot own copyright to your face, copyright is for created "man-made" works. What you have is "personality rights". I can take your picture in a public place..

              Ah.. Be wary of your background. Like buildings, being man-made can have their own image rights that may or may not be pursued depending on it's architect, owner or trustee. Notable examples being trying to take pics in/on the Underground. Partly for safety, ie dazzling drivers with flashes as the're pulling into a station, people tripping over news/film crews or just selfie takers becoming crispy critters after falling off the platform. And it has a media unit for flogging commercial rights and managing pesky 'elf & safety issues properly.

              Then there's the National Trust. Woe betide anyone trying to do commercial stuff in/on properties given over to the 'public trust' because they'll also flog you licences.. Like you say, when it gets commercial, it gets complicated. I think this case is interesting because it's a bit of copyright, and moral rights. So if a 'personal' image ends up being commercially exploited, it seems only fair that the copyright holder benefits, even if that may not have been the intent when the pic was taken.

              1. Adrian Midgley 1

                Re: I don't understand all the ramifications, but...

                Your examples are not public places, therefore if the owners say no photos, no photos.

                It isn't a copyright thing, primarily.

          3. Anonymous Coward
            Anonymous Coward

            Re: I don't understand all the ramifications, but...

            I do historical reenactment, and am listed as a "model" with a variety of photographers with a commercial agreement that basically says "you can sell these pictures of me on stock image sites and to newspapers etc, as so long as you give me a free full resolution digital copy (which is the payment for me)"

            My understanding (which may or may not be correct) is that without being listed as a model the photographer wouldn't be able to list the images on (m)any reputable stock image sites and sell the image. If he tried, I would be able to cause no end of legal hassle for the photographer, the site listing it and the people that bought said image.

            So my understanding is that technically you can sell any photo, but you can quickly end up in a legally dodgy position that you might or might not be able to defend, costing tens or hundreds of thousands of pounds in the process (even if the photographer ultimately won) if somebody in the photo is particularly aggrieved at it's use. Hence, professional photographers get consent first since they don't want the hassle.

        2. steamrunner

          Re: I don't understand all the ramifications, but...

          "Unless it is a picture of a model, in which case the model retains copyright unless a waiver is signed."

          Nope, the photographer always retains copyright on the work they created, unless it is explicitly given, sold or licensed to someone(s) else. It's the *usage* of the photo that's the issue. Very generally speaking, model releases are usually required (depending on jurisdiction) if there is intended or potential future "commercial" use of the images by one or both parties. They may also act to limit usage (e.g. for 'portfolio' or 'promotion' use only, etc), or if certain private or otherwise copyrighted works may be in the image in a private capacity. The model never owns copyright unless explicitly given by the photographer in an agreement (which could be in the release, if agreed). As an aside: model releases are not needed (generally speaking) for images used for editorial and/or news purposes, or for general pictures taken in public places - although good manners should ideally play a part in those, but we can dream...

          1. Mike 137 Bronze badge

            Re: I don't understand all the ramifications, but...

            The primary purpose of a model release is to avoid the need to pay the model royalties for subsequent uses of the image. The model fee is generally contractually in lieu of any such royalties. Limitations of purpose are secondary to this, and copyright is not relevant at all.

            Copyright in any image created by a photographer at their own behest and for their own purposes is vested in the photographer, but final ownership of copyright in an image created on any other basis is a matter of contract. Thus, where a photographer is commissioned for a fee, copyright is generally considered to pass to the party commissioning and paying for the work to be produced, and if the photographer is an employee, copyright by default resides with their employer.

        3. veti Silver badge

          Re: I don't understand all the ramifications, but...

          You're making it up as you go along.

          No, models do not have special legal privileges. Photographers might sign restrictive contracts to work with them, but that's purely voluntary on both sides. Like any contract.

        4. katrinab Silver badge

          Re: I don't understand all the ramifications, but...

          Not a copyright, but a different type of right that you also need to use the photo in certain circumstances, eg advertising.

        5. Adrian Midgley 1

          Re: I don't understand all the ramifications, but...

          Not in England.

          Could you point to relevant law or case and jurisdiction, please?

    2. Jason Bloomberg Silver badge
      Paris Hilton

      Re: I don't understand all the ramifications, but...

      The ramifications are intriguing but I don't believe one should simply have to lose copyright protection or suffer losses just because there are ramifications, potentially far reaching ones.

      I don't think the problem here is Google pointing to cached content, such as on the Wayback Machine, so much as Google promoting cached content over the original content and thus causing a material loss.

      1. big_D Silver badge

        Re: I don't understand all the ramifications, but...

        Or promoting a fake website with no legal rights to the images over the owner themself.

        But that would mean Google actually taking an interest in the law and complying with it, to give website and copyright owners an easy way to report fake sites, to verify the claims and remove those fake sites and their metadata from the search cache... All that costs money and therefore reduces profits, so as long as court cases, lawyers and compensation claims are lower than following the relevant laws, there won't be any change.

    3. Mage Silver badge

      Re: I don't understand all the ramifications, but...

      Next that Parasite Pinterest should be closed or Google et al should only return the sources the pinterest folks used. Very hard to find the source if you are not a pinterest member, and hard even then.

      The problem is Google returning links to copies of a site or image in search and not the source site.

      1. Jamie Jones Silver badge

        Re: I don't understand all the ramifications, but...

        Yes, damn that pinterest site is annoying. Any time a search link takes you to pinterest, you get absolutely zero extra information, just a bunch of photos. click any, it just takes you to another bunch of photos. click again, it tells you to register/log-in.

        If anyone can explain the true purpose of that site for members, I'm all ears...

    4. big_D Silver badge

      Re: I don't understand all the ramifications, but...

      They want to stop Google from showing copyrighted images from one site, linked to another site that doesn't have copyright. It seems reasonable to me.

      If Google would react to a request to check their cache, because it is illegally linking images to a site that doesn't have copyright or a license to use those images (or other content), this wouldn't have to go to court.

      But that would mean additional administrative costs and reduced revenue, for doing the "right thing".

  2. Anonymous Coward
    Anonymous Coward

    Absurd, dismissed.

    1. overunder Bronze badge

      Not absurd. The only reason Google does it is because there's money in it, which is the same reason Wheat does it. Google has spent a lot of money convincing people it's O.K. for Google to steal, but not you.

    2. Doctor Syntax Silver badge

      Have you considered the possiibilty that the judge understands the legal aspects better than you, both because he understands the law and because he heard the whole case, not just a summary.

  3. joeW Silver badge

    Alternative headline - "Azure Consultant Has Apparently Never Heard Of A Fucking robots.txt File"

    1. Jason Bloomberg Silver badge

      Having a robots.txt doesn't stop people maliciously scrapping a site, putting it online as a clone somewhere else, which is what appears to have happened here.

      1. Jamie Jones Silver badge

        besides, even if the robots.txt was a magic solution, it's got no legal standing. Copyright is granted/assumed by default. You have to opt to give it away, not opt to keep it (as the magic robots.txt would imply)

    2. NetBlackOps

      My first thought as well. Pass the popcorn!

    3. Claverhouse Silver badge

      Indeed.

      Fucking copyright freaks. Once you let anything loose in the pastures of the Internet, you relinquish control forever.

      And I don't give a stuff about imagined or actual 'rights'.

      .

      We all within our graves shall sleep

      A hundred years to come;

      No living soul for us will weep,

      A hundred years to come,

      But other men our lands shall till,

      And others then these streets will fill,

      And other birds will sing as gay,

      And bright the sun shine as to-day,

      A hundred years to come.

      William Goldsmith Brown

      1. doublelayer Silver badge

        He isn't being crazy about his copyright--he's trying to prevent Google from making copies, which is illegal, by the by, and using them to lower traffic levels to his site, which would lower the ad payout to him and presumably increase the one to him. I don't know the details, and there is a possibility that the summary as stated in the article is not representative of the real situation, but if it is, it seems relatively clear that theft of that nature is malicious.

        We all within our graves shall sleep

        A hundred years to come;

        But ere that century so deep

        Will pass, crimes may be done,

        And though I wish naught but the best,

        To children then, I must confess,

        As I live now, I wish my due,

        As would I wish to those of you,

        A hundred years to come.

        Modified with apologies to William Goldsmith Brown

      2. veti Silver badge

        Google is a publisher. The whole purpose of copyright law is to control publishers. I'm glad someone is, for a change, using it appropriately.

    4. TheVogon Silver badge

      And how would said Azure Consultant force Monaco Telecom to use one?

    5. Anonymous Coward
      Anonymous Coward

      You assume bots/web crawlers al fetch robots.txt and honour its contents.

      A cursory glance at the Apache log files from my websites this july paints an entirely different picture.

    6. IGotOut

      Indeed it's piss easy to clone an entire site, I've even done it with one of my own when I found it easy to rip and replace rather than migrate.

    7. the spectacularly refined chap

      Alternative headline - "Azure Consultant Has Apparently Never Heard Of A Fucking robots.txt File"

      I'd prefer "Commentards offers learned legal opinion despite having completely failed to grasp issue at hand."

      Robots.txt:

      • has NO legal significance
      • is not an official IETF nor W3C standard
      • is not even intended to address copyright matters in any case

      Copyright law is clear that if you copy my work you need my permission. I don't need to plaster hands off notices everywhere and using any method that any random person on the Internet proposes. Sure, robots.txt is widely followed but is also widely ignored. At best it should be viewed as a courtesy. It is not an official standard and has precisely zero legal significance.

      1. Richard 12 Silver badge

        I wouldn't quite say zero legal significance.

        It could perhaps be used as evidence of explicit malicious intent, as part of an argument for greater damages to be awarded.

        But yeah, it'd only have any importance after infringement had already been proven to the requisite certainty.

      2. Anonymous Coward
        Anonymous Coward

        "Copyright law is clear that if you copy my work you need my permission."

        Sorry to disagree but that isn't true. There is a fair use rule and also implied consent which are two ways that I wouldn't need your permission to copy your work. This allows me to visit your website where my computer will copy your work from your server to my computer, reconstruct it and display it to me, whilst also keeping a copy of some parts of it in the cache for later reuse.

        Therefore unless you have a large splash page (with no images) that I click through on your site then I am relying on implied consent to do this and would be covered under fair use.

    8. katrinab Silver badge
      Facepalm

      No. He can’t put a robots.txt on a website hosting pirated copies of his material.

    9. MrReynolds2U
      Facepalm

      A robots.txt file would only say "don't index these images" to GoogleBot which is the opposite of what the claimant wants. He wants Google to index his images so he can get traffic from their search engine.

      However someone has scraped/aggregated his images and the Google index shows them above him for his IP (images). That not only means they are getting his traffic and reducing his ad revenue, but also that Google may be micro-penalising him as not displaying original content if it views the aggregator as the original source of the images.

  4. Anonymous Coward
    Anonymous Coward

    because he was operating his business in [England and Wales], the loss of advertising revenue and the financial loss caused by the lower profile of his website than would otherwise have been the case caused damage to him within this jurisdiction.

    He ain't seen nothing yet, he won't exist after Google has finished expunging him.

    1. DavCrav Silver badge

      "He ain't seen nothing yet, he won't exist after Google has finished expunging him."

      Yes, nothing says 'definitely not an aggressive monopoly that needs to be regulated into oblivion' like being able to take massive retaliatory action against someone trying to obtain legal redress against their (alleged) law-breaking.

  5. Frank Bitterlich
    WTF?

    Not sure, but...

    As I understand this, somebody (Monaco Telecom? Or is it just hosted with them?) has allegedly created a clone of this guy's website, pilfered the images, added some SEO, and Google is indexing (and showing search results for) that cloned website. So Google cached the (allegedly stolen) images from the clone.

    So suing Google for this is a bit far-fetched IMHO... either he is going for the low-hanging fruit (why isn't he suing Bing?), or he doesn't understand how search engines work. So much for "Azure Consultant"...

    1. doublelayer Silver badge

      Re: Not sure, but...

      I hear the same sort of thing. Suing Google doesn't make a ton of sense unless he tried to go through the normal takedown and Google acted maliciously to block that. But from this article and his accusations, I get several incompatible stories and I'm not sure which one is really the case.

    2. big_D Silver badge

      Re: Not sure, but...

      If he informed Google that the cloned site was illegally using his works and they didn't remove it / demote it, I would suggest they are aiding and abetting a fraud (and profiting from it).

    3. Sirius Lee

      Re: Not sure, but...

      The article explains that in judgment of the original trial the plaintiff was given leave to appeal but only against Google. Whether you think that appealing against only Google is right or not, its what the judge thinks that counts.

    4. simonlb
      Trollface

      Re: Not sure, but...

      What is this Bing of which you speak?

    5. localzuk

      Re: Not sure, but...

      It seems a bit like suing a newsagent because they stock a magazine that has a copyright infringing photo in it.

  6. Anonymous Coward
    Anonymous Coward

    User error?

    If I understand correctly ...

    Wheat used Monaco Telecom to create a website theirearth.com but subsequently moved it to a different hosting company. However www.theirearth.com still pointed at the Monaco hosted site? Assuming that Monaco Telecom acted like other ISPs I've used and create http://www.domain.com and http://domain.com isn't this more likely to be a case that DNS records were incorrectly updated when Wheat changed hosting companies?

    Also paragraph 15 ii. On 10 June 2009, the claimant uploaded three new articles at the Grimaldi Forum Press Room from the Monte-Carlo Television Festival and viewed them on Monaco Telecom's internet in Monaco. When he checked later the three articles were not on the Knipp server.

    Wheat appears to have still actively been publishing content to the wrong hosting company as well almost a year after changing companies,.

    To me this seems more a cock-up during the transfer of the domain and the fact that the wrong website was updated by the site owner as described in 15ii I don't see how this can be considered a copyright issue.

  7. Ken Moorhouse Silver badge

    Caching?

    After this case they should rename it to "chaffing".

    Separating the wheat from the chaff.

    1. IanTP
      Pint

      Re: Caching?

      I see what you did there, have an early Friday one on me :)

  8. gurugeorge

    7 billion uk revenue in 2016 probably a lot more now. Of course they should be able to be sued in uk courts

  9. mark l 2 Silver badge

    This guy claims to be an Azure consultant (which i read as salesman as he clearly has no technical knowledge) Does he think someone at Google manually decides which websites to index and put at the top of the Google searches?

    It seems odd to be trying to sue Google for linking to a site he alleges is hosting his copyrighed works without permission. Surely he should be suing the site hosting his copyrighted works and submitting DCMA requests to Google to have all the offending links of the pirate site de-indexed.

    Of course he might have already done that and Google have refused to do so and that is why he's suing, but this article doesn't say that is the case.

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