Join The Club: Tumblr Is The Latest Company Sued By Perfect 10
from the good-luck-getting-some-of-that-zero-revenue dept
And here we go again. Perfect 10 likes to describe itself as a porn publisher, but it’s become clear that it’s real business seems to be about suing internet companies by claiming copyright infringement. It’s sued all sorts of companies, using all kinds of bizarre legal arguments, many of which have resulted in losses (and useful precedents), but sometimes sites seem to settle and Perfect 10 just keeps suing. It’s latest target is Tumblr, which it has sued for copyright infringement using many of the same old theories it’s used before. You would think that Perfect 10’s Norman Zada would have at least waited until Tumblr was actually making some revenue before suing, but apparently he couldn’t wait.
So how is Perfect 10 trying to get around the DMCA claims? First, by claiming that Tumblr ignored its DMCA notices. If this is true, that certainly would damage Tumblr’s DMCA safe harbor claims. Though, it would surprise me if it was true. In many of its other cases, it’s later come out that what Perfect 10 claims are legitimate DMCA takedown notices are anything but. In fact, it often appears like Perfect 10 tries to make its DMCA notices almost impossible to comply with — which, if true, would be one way to make it easier for the company to then sue over failed compliance…
Second, it claims that Tumblr’s own employees uploaded Perfect 10 images to “jumpstart” Tumblr’s success. Again, if true, those actions would not be covered by the DMCA’s safe harbors, but the filing provides little to no support for the claim that this happened. Perhaps it’s true, but given Perfect 10’s past, it would nice to see some actual evidence there in order to believe the claim, and not think that this might just be a fishing expedition.
Finally, Perfect 10 claims that the fact that Tumblr has a search engine lets people find the infringing pictures. They seem to be arguing that this is part of the contributory infringement claim. I’d imagine that this is based on the fact that part of the reason Rapidshare beat Perfect 10 was the lack of a search engine (and, yes, here is where we note the irony that the US gov’t is using the lack of a search engine as proof that Megaupload was clearly illegal — when that same fact actually helped get Rapidshare deemed legal). Still, Perfect 10 hasn’t had much luck getting any actual search engine found liable, so it’s unclear why it will suddenly start with Tumblr.
We’ll see what other evidence comes out, but, assuming Tumblr’s employees did not directly infringe Perfect 10’s work and that there is an explanation for the “DMCA notices,” one would hope that Tumblr will join many other top internet companies in fighting back against Perfect 10 and (hopefully) create a few more good precedents along the way.