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"Fair Use" And Google Earth Imagery

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.

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7 Responses to “"Fair Use" And Google Earth Imagery”

  1. 1 James Fee

    I’m pretty sure pulling data out of Google Earth and into a GIS is beyond fair use even for personal or non-commercial use. This whole topic is pretty grey and I would recommend anyone go this route. If folks want to plot shapefiles on imagery, they should be pulling for World Wind, not Google Earth. I’m a big supporter of fair use, but I just don’t think pulling the imagery out of GE and then recifying it qualifies.

    Count me in with the “this is a bad idea” crowd. World Wind is the better choice for this by far.

  2. 2 Leszek Pawlowicz

    It’s possible for reasonable people to disagree on what constitutes fair use. If you could go into your thoughts as to why the uses I believe are “fair use” aren’t, I could respond better (or perhaps even agree). There’s no doubt that Google expected the imagery to be used beyond the limits of Google Earth, or they wouldn’t have included an image export function. How far beyond is the question.

    In terms of what the best medium is for displaying shapefiles, I’d say that depends on what your target audience is. If it’s intended for display in non-computer media formats, or in flat non-static format (which distances it from the Google Earth format and makes it more likely to conform to “fair use”), then you create it in a GIS, not in a digital globe. If you’re looking to show it in a digital globe, and want to access the largest number of casual viewers, you convert it to KML for use in Google Earth (and WorldWind too, for that matter).* Fair or not, Google Earth is the digital globe of choice for most people, so that’s where you put it if you want people to see it. If you’re going to display it in a customized fashion, or if there’s a blatantly commercial aspect to the data display, then WorldWind is probably the way to go.

    * I don’t think anyone would argue that converting a shapefile to KML format, and then showing a snapshot view of the KML file as displayed in Google Earth, violates “fair use”, especially when the context is non-commercial. Google certainly doesn’t, since they’ve never complained about the thousands of examples of this you’ll find across the Web, and in fact showcase some of them in their Google Earth gallery. How is that functionally different from importing the imagery into a GIS and creating an equivalent image for non-commercial purposes?

  3. 3 James Fee

    I’m 100% sure that save as image option is for including the work in your presentations and such, not to perform work beyond what the imagery is provided for.

    As for your “example” at the bottom, you are using the imagery in GE which is what it is designed for. By saving it out and changing how the image is provided, you step over the fair use bounds.

    I just can’t see how one can advocate using imagery in GE inside a GIS unless you pay Google a licensing fee. This is a bad idea all around. As I said above, one should stay away from this method of getting imagery into GIS. There are plenty of Public Domain sources that should be used instead and there is no “legality” issues involved.

    The issues isn’t if GE is the digital globe of choice or not, but if you are taking imagery from one product and moving it to another without a license.

    If you pressed me on this, I’d even call it stealing, but that is just my opinion.

  4. 4 Leszek Pawlowicz

    If you use the imagery in a presentation, you’re taking it out of the context it was originally presented in. Suppose you also modify it by stretching or deforming it, or adding additional information to the image. You’re using the imagery out of the context it was originally intended to be viewed in, and modified it, and yet those would fall under most interpretations of “fair use”.

    If you want to convince me and others that using the Google Earth imagery outside of Google Earth itself violates “fair use”, then you’ll need to do it on the legal concept of fair use. Taking copyrighted material out of its original context, transforming it, then presenting it in a different context, does not by itself violate the limitations of “fair use” by the standard definitions of the term, nor does using it in a different fashion that it was intended (cf the artists who transform copyrighted and trademarked material into something else). My post is too short to go into the full details; check the linked Wikipedia article and the references in it for more details. I suspect you’ll find that “fair use” isn’t what you think it is.

    For example, you say that moving the imagery from one product to another is where a violation of fair use takes place. But the courts have ruled repeatedly that limited excerpting of copyrighted material outside of its original context is allowable under fair use, the classic examples being the use of excerpts from books, movies or music in reviews, or extended excerpts from books in other books. That material is removed from its original context, modified, and placed into a new context to perform a different function in that new context, but all that is protected under “fair use”, even when you’re making money from selling that review. Taking that argument to the extreme, posting a screenshot from Google Earth to a website would be a violation of fair use, which Google itself (and its content providers) clearly don’t view it as.

  5. 5 theRajah

    Google Earth provides the save functionality so that you can export the current view. They dont tell you how to use that image – you could use it as desktop wallpaper or on a party invitation. You could add text on top of the saved image – Google doesnt stop you from doing that. So why should adding auxilary information that geo-references the image be an infringement of the fair use policy. After all you might geo-code that image so that it shows up correctly in a different map application.

    In your article you only provide a technique by which one could add geo-referencing info that would allow the image to show up correctly in another GIS app – whats agains fair use about that.

    If you instead tried to download a ton of tiles to create your own data-set and sell that – that would go against the fair use license. If you tried to sell the geo-referenced data or tried to create a derived work that you sold – then that would be against the fair use license.

    Finally, I have got to add – your technique could be extremely useful for some university student or someone doing research to get some data on which they could try some experimental processes. So I am sure there will be a lot of people who will use this technique and still remain within the bounds of fair use of the data.

  6. 6 Leszek Pawlowicz

    I’ve sent an email out to someone who deals with fair use issues regularly (albeit not someone I know personally, so I may or may not get a response). I think I’ve interpreted the fair use issues correctly, but I don’t want to keep defending my position if I’m wrong.

  7. 7 ubikcan

    I agree with James that I don’t see the question of whether you can technically save out an image from Google Earth as being relevant. One could equally say that a webpage can be saved (check under “File” in your browser) but you still see copyright symbols on websites. So the technical capability to save or copy or reappropriate something is not an implicit permission to do so.

    On the other hand, Fair Use refers to “use,” not whether something has been put in a new context, so I disagree with James on that point. It gives latitude though not a free pass to educational settings, journalists, reviewers etc. and it depends on how much has been copied and with what financial effects as Leszek notes.

    James is right to point to World Wind which is surely a much safer option and genuinely free of restriction as it is federal data. The USA has a bright shining tradition of making federal products copyright free (just ask anyone in the UK concerning the OS). I love me my Google Earth just due to the way it has pushed cartography forward but in the end it will have ToS and EULAs.

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