Copyright Troll Perfect 10 Loses Once Again, Setting More Good Precedents For Copyright Law

from the keep-it-up dept

We've written about Perfect 10 a number of times. The company, which claims to be a publisher of pornographic magazines has really been a copyright troll for much of its life, as was outlined in one response to one of its many, many lawsuits -- all of which it seems to lose in the end. Perfect 10 has actually become something of a wonder, filing case after case after case -- and losing pretty much all of them, but often setting really useful precedents along the way concerning the contours and outlines of copyright and the DMCA along the way. It appears to have done so again.

In 2011, we wrote about Perfect 10's decision to sue Usenet provider Giganews, and once again, Perfect 10 has received quite the judicial smackdown from a judge who is clearly not at all impressed by Perfect 10 and its owner, Norman Zada. There are some procedural issues here, as the ruling is on Perfect 10's motion for summary judgment (which fails in every way), but the judge notes various ridiculous procedural mistakes by Perfect 10, including trying to block declarations that were filed properly -- while also noting that Zada's own declaration is almost certainly not admissible as "some of Zada's statements are tantamount to expert testimony that Zada is not qualified to give." Sloppy lawyering does not make a judge happy. But getting to the meat of the case, and Perfect 10 loses on, well, everything.

Perfect 10 argued that Giganews didn't have a valid repeat infringer policy as required by the DMCA to obtain safe harbor protections. But the judge points out that's just wrong. First, Giganews clearly does have a repeat infringer policy. Perfect 10, however, appeared to argue that it wasn't a "reasonable" policy because it doesn't delete all messages from a user, just the ones claimed to be infringing. The judge notes that's not the law.
Giganews acknowledges that it removes only the specifically-identified infringing messages posted by a repeat infringer, and not all of the messages ever posted by a repeat infringer. The Court is not persuaded that § 512(i)(1)(A) requires a service provider to disable or delete all messages a repeat infringer has ever posted. By its terms, the section requires “termination . . . of subscribers and account holders,” not the deletion of messages. In addition, by Plaintiff’s reading, § 512(i)(1)(A) would require a service provider to take down all of a user’s messages, not just the infringing ones. Because deleting noninfringing messages does not serve any infringement-preventing purpose, there is no justification for reading such a requirement into the statute. In short, the Court will not read into the statute a requirement that its plain language does not support and that goes far beyond stopping and deterring copyright infringement.
Then, Perfect 10 argued that because only 46 "repeat infringers" had their accounts terminated, despite removing 531 million messages that were claimed to be infringing, it shows the policy is not adequate. The judge isn't buying it, noting that this "conclusion is not compelled by the evidence," which is further explained later, once you realize that many of the messages removed are just via other usenet providers, so not even direct users of Giganews (meaning there's no way for them to remove those users anyway). Perfect 10 also tries to argue that since Giganews can't identify all of the users (because many are not actually from Giganews), that shows the policy is inadequate. Thankfully, the judge appears to realize that this is a function of usenet itself, and isn't Giganews' specific issue:
However, that a Usenet service provider cannot identify all users whose messages reside on its servers appears to be a function of how the entire Usenet works. According to Giganews, all Usenet service providers encrypt the data that identifies the user who posted a message; this encrypted data is reflected in a part of the message header called the X-trace field. Only the Usenet service provider with whom an account is registered can decrypt the X-trace field it has attached to a message posted by that user. Many of the messages hosted on Giganews servers are posted through accounts registered with other Usenet providers. Because Giganews cannot decrypt the X-trace field on such messages, it cannot link such messages to any specific users, and thus cannot apply its repeat infringer termination policy to such users.
It's nice to see judges understand at least a little basic technology.

The judge also takes issue with the way that Perfect 10 sends its DMCA "notices." We've seen this multiples times before. In other cases, companies have highlighted that Perfect 10 seems to delight in sending notices that make it nearly impossible to actually find and takedown the content, meaning that they're not valid DMCA notices. For example, in the case against Google, Perfect 10 sent Google image files, without actually sending links to where those images were, or one what searches they were appearing. Basically: here are the images, block them. But that's not how the DMCA takedown process works. It's almost as if Perfect 10 tries to make it hard for sites to take down content it claims is infringing so that it can sue (hmm....). The judge here is not impressed, as it appears that Perfect 10 also tried to make things complex for Giganews:
At this point, a description of Plaintiff’s Notices is in order. Plaintiff’s Notices instruct Giganews to use certain newsreaders to conduct searches of specific names within certain newsgroups, and then tell Giganews that all of the messages yielded by those searches on a certain date contained infringing material. Along with (verbose) written instructions for performing these searches, Plaintiff’s Notices include pages of thumbnail images of the infringing materials and/or screen shots of the newsreader interface reflecting the search results. Plaintiff contends that this satisfies § 512(c)(3)(A)(iii) because the search results and thumbnails both “identify” the infringing messages and also provide sufficient information to permit Giganews to “locate” those messages.
Giganews, in turn, points out that this isn't nearly enough information to find and disable those messages. It points out, quite reasonably, that it needs message-IDs for each message. The court agrees, pointing out that the caselaw is pretty clear here -- even citing a previous Perfect 10 case. The judge goes through a lengthy description of just how difficult it would be for Giganews to actually comply with Perfect 10's requests, given that they're presented in a nearly impossible to follow manner. Perfect 10 tried to argue that because Giganews did still remove some messages this way that it shows it can do it, but the court isn't buying it -- in fact, suggesting that Giganews actually went above and beyond what is required by the law.
Giganews has presented substantial evidence of the untenable burden it would face if every DMCA notice it received required it to undertake the Message- ID extraction process Plaintiff expects of it. That Giganews evidently chose to undertake this process for two of Plaintiff’s Notices does not necessarily mean that those Notices satisfy § 512(c)(3)(A); it may mean that Giganews went beyond its duty.
Basically, it's yet another complete loss for Perfect 10, who still seems to keep filing these lawsuits because some companies (you know who you are) actually decide to settle and pay up, rather than push back against this bit of trolling.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    Ninja (profile), Jan 30th, 2014 @ 1:53am

    Picture Street Fighter. Picture the troll on one side and culture on the other.

    Culture wins!

    PERFECT!

    Ahem.

     

    reply to this | link to this | view in thread ]

  2.  
    icon
    silverscarcat (profile), Jan 30th, 2014 @ 1:57am

    Random thought...

    What if? Now this is kind of crazy, but, what if...

    Perfect 10 wasn't a troll, but rather a company that wants to help culture out by getting these precedents in place so others can't/won't sue due to it.

    ...

    Who am I kidding? They're still trolls.

    Would be a nice thought though.

     

    reply to this | link to this | view in thread ]

  3.  
    icon
    Rikuo (profile), Jan 30th, 2014 @ 3:45am

    Re: Random thought...

    You and I think very alike, as I had the same thought reading through this. I was wondering what could be their motivation to keep filing these lawsuits when they fail time after time after, and judgements from earlier failures are used against them in more recent cases.

     

    reply to this | link to this | view in thread ]

  4.  
    icon
    That One Guy (profile), Jan 30th, 2014 @ 3:51am

    Simple:

    Sheer. Overwhelming. Ego.

    Much like Steele/Prenda, they just cannot fathom that they're not nearly as smart as they think they are, so despite being stomped flat in court they just keep on, business as usual, sure that this next case will turn it all around, that this next judge will buy their arguments, and all their work will be validated.

    Add in the fact that there's really no punishment levied against them for their actions, and enough companies cave in to make it profitable, and the question to be asked isn't 'Why do they continue?', but rather 'Why would they ever stop?'

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Anonymous Coward, Jan 30th, 2014 @ 3:58am

    Re:

    If it pulls out the spine and has a flawless victory too, I'll be happy...

     

    reply to this | link to this | view in thread ]

  6.  
    icon
    Rikuo (profile), Jan 30th, 2014 @ 4:08am

    Re: Simple:

    So basically I should take my tendency to give people the benefit of the doubt out back behind the garden shed and put a bullet in it?

     

    reply to this | link to this | view in thread ]

  7.  
    icon
    That One Guy (profile), Jan 30th, 2014 @ 4:32am

    Re: Re: Simple:

    No, just apply it a little more carefully.

    Giving people the benefit of the doubt is fine, and in fact a good way to handle life, but when the person/people in question have more than shown that they don't deserve it(something that every single copyright/patent troll has more than managed), assuming idiocy/arrogance, rather than hidden altruism is probably the safer bet.

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    Drew, Jan 30th, 2014 @ 5:40am

    Wait!

    I thought Perfect 10 was a scale for drunken men.

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Anonymous Coward, Jan 30th, 2014 @ 5:51am

    Re: Re: Re: Simple:

    assuming idiocy/arrogance, rather than hidden altruism is probably the safer bet
    Shwing a willingness to go to court means that they can keep on claiming less than the cost of fighting them. It is basically saying pay our demand, or spend more to win in court. So long as more companies settle than take the fight to court they remain ahead of the game in terms of income.

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Anonymous Coward, Jan 30th, 2014 @ 5:54am

    Re: Random thought...

    I think it is actually an indication of the level of stupidity in the porn industry.

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    St. Pat, Jan 30th, 2014 @ 7:08am

    Perfect 10

    I give this court ruling a perfect 10.

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Anonymous Coward, Jan 30th, 2014 @ 8:02am

    average_joe, proven wrong once again.

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Anonymous Coward, Jan 30th, 2014 @ 8:05am

    "Perfect 10 argued that Giganews didn't have a valid repeat infringer policy as required by the DMCA to obtain safe harbor protections. But the judge points out that's just wrong. First, Giganews clearly does have a repeat infringer policy. Perfect 10, however, appeared to argue that it wasn't a "reasonable" policy because it doesn't delete all messages from a user, just the ones claimed to be infringing."

    So Perfect 10 has admitted indirectly that they want all legal things deleted from a user that are not infringing. Well that is not how the DMCA works.

     

    reply to this | link to this | view in thread ]

  14.  
    icon
    Karl (profile), Jan 30th, 2014 @ 8:53am

    Say, remember when one of our usual maximalist AC's was saying "bye bye Google" because their search engine "allows repeat infringer's links to continue to show up?"

    This case proves them wrong... again.

    It's amazing how much copyright holders are willing to twist the law in order to attack anyone they can't outright control.

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    Anonymous Coward, Jan 30th, 2014 @ 10:06am

    Re:

    Indeed and yet they will regard this to be an anomally and that that this Judge got it wrong and continue to state "bye bye Google" because of this or that etc.

     

    reply to this | link to this | view in thread ]

  16.  
    identicon
    alan turing, Jan 30th, 2014 @ 12:05pm

    Re: Re: Simple:

    See that small blip on the horizon? That's the sail of that ship carrying the benefit of doubt.

     

    reply to this | link to this | view in thread ]

  17.  
    icon
    CK20XX (profile), Jan 30th, 2014 @ 3:32pm

    Re: Random thought...

    You can just picture other copyright trolls making wild gestures at Perfect 10 and Prenda while shouting "Stop helping us!"

     

    reply to this | link to this | view in thread ]


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