I’ve gotten a few comments on my post about importing georeferenced Google Earth imagery into a GIS, talking about the legality of using the imagery in a business context, and pointing out restrictions contained in the Google Earth user license and the general Google Terms Of Service. While my post mentions that the restrictions of the Google Earth license and “fair use” need to be followed when using this imagery, at least one person equated the use of Google Earth imagery in this manner with theft, dismissing both the concept and legal precedents of “fair use”. So I’ll add some additional thoughts on when it’s appropriate to use Google Earth imagery, based both on a layman’s reading of the user license and the principles of “fair use”. I’d welcome further input from anyone who is an expert on issues of copyright and fair use, and also from anyone from Google who wants to give their take on the issue.
By the terms of the recent revision of the license, the Google Earth software can be use both for “personal, non-commercial uses according to these Terms of Service and the Software documentation“, and for businesses, “the Software may be used by you and your employees for internal use according to these Terms of Service and the Software documentation“. The software comes with the ability to export the satellite imagery on-screen, and the Google Earth API comes with the ability to provide the bounds of the onscreen image, so the actual act of creating an georeferenced Google Earth image is not a violation of either the license or the Digital Millennium Copyright Act. In addition, the license states that, “You agree not to use the Software for any bulk printing or downloading of imagery, data or other content“, indicating that limited printing, downloads of imagery and data are acceptable. The ability to create such imagery directly from the Google Earth application using its built-in print and export functions confirms this interpretation, else Google would not have included this functionality.
Addendum (9/18/07): I should add that any use of the imagery requires you to maintain the Google logo and all the copyright notices embedded in the exported image to maintain proper attribution for the source.
The real question of “fair use” here comes down to how the imagery is used. In the general Google Terms of Service, under the “Content in the Services” section, it says:
“You should be aware that Content presented to you as part of the Services, including but not limited to advertisements in the Services and sponsored Content within the Services may be protected by intellectual property rights which are owned by the sponsors or advertisers who provide that Content to Google (or by other persons or companies on their behalf). You may not modify, rent, lease, loan, sell, distribute or create derivative works based on this Content (either in whole or in part) unless you have been specifically told that you may do so by Google or by the owners of that Content, in a separate agreement.”
The restrictions in any such Terms Of Service don’t preempt the use of any material that falls within the bounds of “fair use”, as numerous court cases have determined. Unfortunately, those bounds can be hard to define. I highly recommend the Wikipedia article on fair use and its references for more information on the topic, especially if you’re not familiar with the concept of “fair use”, since some of its implications may surprise you. Generally speaking, copyrighted material like the Google Earth images may be usable by others without explicit permission of the content creators based on the answers to number of questions:
- What is the purpose or character of the use? Does it enrich the public by adding something new, or is it merely intended to supersede the original content for profit without adding value? The first falls under fair use, the second doesn’t. Works derivative of other copyrighted material have been ruled to fall within the bounds of “fair use” as long as they don’t supersede the original and provide added value, even when the derivative works are sold commercially.
- What is the nature of the copied work? Factual information can’t be copyrighted, but expressions of factual data can be. Even here, it’s not a hard restriction. The Zapruder Kennedy assassination film was copyrighted by Time Magazine, but when they sued the publishers of a book for publishing stills from the film, they lost; publication of this material was held to be in the greater public interest than upholding the copyright.
- Is the amount of copyrighted material used significant and substantial? Reproducing a copyrighted work in its entirety is illegal, as in the case of the of the open source Google Earth clone Gaia that planned to use Google Earth imagery, or MP3 music files. Reproducing limited excerpts of copyrighted material is allowable under fair use if appropriate for the context, e.g. the use of Google Earth screenshots found on many websites and blogs, or excerpts of MP3 files when used in music review.
- Does use of the copyrighted material significantly impact the work’s value? If you use the imagery to undercut the value of the original copyrighted material, that’s an issue; if you use it in a fashion that doesn’t, that may fall under the provisions of fair use. The classic case concerning this was the Sony Betamax case, where the Supreme Court ruled that videotaping copyrighted material didn’t have such a negative impact, and thus fell under the protection of “fair use”. And this was even despite the broadcaster’s argument that this technology could be used to break the copyright law. The Supremes ruled that if a technology had legal uses, it couldn’t be outlawed just because it might be used in an illegal fashion; you had to prove that its principal use was to foster illegal use of copyrighted material (that’s why Napster got shut down).
No answer to any one of these question precludes use of the material under fair use; conversely, you might think you have a reasonable “fair use” right under all four questions, but a court might disagree. The way I interpret these “fair use” factors relating to Google Earth imagery (and I’m not a copyright lawyer, so this is a layman’s opinion):
- Use of limited amounts of Google Earth imagery for personal or non-commercial GIS usage when not distributed publicly very likely falls within the bounds of “fair use”.
- Use of Google Earth imagery for personal or non-commercial use for public distribution would seem to fall under the rubric of “fair use” when it is of a limited nature, some transformative value is added (e.g. plotting additional data on top of it, or using it as a basis for further explanatory information), and when it doesn’t impact the value of the original imagery. So, for example, plotting shapefile data on top of a Google Earth image in a GIS, and then distributing the resulting image publicly, may fall within the bounds of fair use when it’s not done for profit. Creating a large-area, high-resolution georeferenced mosaic of just the imagery alone, and then posting it for download on your website, even if you don’t charge for it, will in all likelihood earn you a cease-and-desist letter from Google, and for good cause.
- The legality of internal use of Google Earth imagery in a GIS for commercial purposes conceivably could depend on the usage, but this is a gray area shading towards black. Talk to your legal department, and be prepared for them to legitimately say “no” to any such use.
- Public use of Google Earth imagery in commercial settings likely falls under “fair use” in some cases, e.g. screenshots of Google Earth imagery for illustrative or informative purposes on a website or blog that earns revenue from displaying ads. Google has acknowledged and featured the work of several blogs that exhibit such screenshots along with ads. Beyond that, though, the legality of public use of Google Earth imagery in a commercial setting will depend on the answers to the “fair use” question above, which lies within the domain of copyright law. My guess would be that more often than not it doesn’t qualify as “fair use”, and even if you think it does, it probably doesn’t. Talk to your lawyers. I might add that if you really want to use satellite imagery for public commercial purposes, you’d be better off looking at using Google Maps instead, since the license and TOS allow for some commercial use of essentially the same satellite imagery you’ll find in Google Earth.
