Perfect 10 Loses Yet Another Ridiculous Copyright Lawsuit
from the when-will-this-end? dept
We’ve written about the various and never-ending copyright lawsuits filed by Perfect 10 more than a few times. The company — which claims to be in the porn magazine business — seems to focus much more on suing as many internet companies as possible. Especially search engines. It loves to sue and blame search engines. Of course, its record in court is dismal. The company almost always loses and loses big. In some ways, Perfect 10 is actually incredibly useful: it has helped set a number of important precedents against over-aggressive copyright enforcement that have come in handy in other cases. The company has filed dozens of lawsuits, and the fact that it loses so many of them doesn’t appear to faze the company. In fact, in one countersuit against Perfect 10, a very strong argument is made that the company is a type of copyright troll, whose business isn’t in producing porn, but in suing companies.
One of its latest lawsuits was against Yandex, the most popular search engine in Russia. Yandex is technically a Dutch company, but it has an American subsidiary, Yandex Inc., which does some development for Yandex.ru, the flagship Russian search engine. So it was this American presence that Perfect 10 sued, coming up with its usual twisted list of rationales for why this search engine, mostly based and used in Russia, should somehow be liable for the fact that its users can find images that Perfect 10 holds the copyright on hosted elsewhere. Once again, the case has gone badly for Perfect 10, with the court ruling for summary judgment on a variety of issues in favor of Yandex.
The court not only says that Perfect 10’s claims of direct infringement are completely unsupported, but also notes that the company, ridiculously, pointed to one of its other cases, against Amazon, to support this claim. Except, the judge actually read that ruling, and pointed out that it doesn’t say what Perfect 10 appears to think it says:
According to Perfect 10, when its images are hosted on servers located in Russia, Yandex violates Perfect 10’s “exclusive display right” because users in the United States could download them. Perfect 10 supplies declarations establishing that a United States user could download Perfect 10 images from a Yandex server in Russia, but no evidence of actual downloads in the United States.
This theory of liability is rejected. Although Perfect 10 cites Amazon in support of its argument, nowhere in that decision did our court of appeals endorse the idea that display of a copyrighted image anywhere in the world creates direct copyright liability in the United States merely because the image could be downloaded from a server abroad by someone in the United States. Such a principle would destroy the concept of territoriality inherent in the Copyright Act for works on the internet.
This kind of thing is repeated throughout. Perfect 10 makes some outlandish claim about how Yandex must be liable, and the court shoots it down for lack of any evidence or precedent to support Perfect 10’s claim.
It is not necessary to address the validity of this theory merits. It fails for lack of proof.
Ouch.
While Perfect 10’s infamous lawsuit against Google over the thumbnail images in Google Images failed miserably, and was yet another victory for fair use and common sense, Perfect 10 tries again here. It claims that that case doesn’t apply to image thumbnails in Yandex’s search because Yandex provides direct links to the images, rather than the pages, unlike Google (though, I believe Google recently switched to something like this). The court is unimpressed, noting that the thumbnails are still fair use.
It is true that this integrated composite screen left the impression that the nude model image emanated from Yandex, but this objection fails for three reasons. First, our court of appeals expressly held that in-line linking to a full-size image does not constitute direct infringement. Id. at 1159–60. Without a direct infringement of the full-size image, the fair use defense does come into play — at least as to that full-size image. Second, whether a browser window shows only the thumbnail and the full-size image — instead of the full-size image along with part of the surrounding web page — does not affect whether the use of the thumbnail has been transformed. Third, even if yandex.com’s use of the thumbnail were broadly described as an ‘in-line link connected to a full-size image,’ that use remains highly transformative.
In other words, it’s not the link that makes the difference here, but rather the purpose of such an image search engine, which is entirely different than a magazine. In typical Perfect 10 fashion, even when it presents evidence, that evidence is nonsensical and doesn’t further its claims, which the court makes clear.
Perfect 10 is arguing that Yandex causes it market harm because Yandex provides a search service that links to third-party infringers. This argument is not substantiated by competent evidence. Perfect 10’s putative support for this contention consists of screen shots from third-party websites showing that links on those websites leading to Perfect 10 images had been viewed approximately 3.8 million times as of December 2012 (which was within the nine-month period that yandex.com servers were located in the United States). Perfect 10 does not, however, provide evidence that any of those views were the result of yandex.com users clicking on thumbnails stored on yandex.com servers in the United States during that nine-month period. The simple fact that the thumbnail links were stored in yandex.com’s index and accessible on the internet does not compel a finding that those links were actually viewed or used.
Again and again, we see Perfect 10 make ridiculous assertions and the judges have to smack them down for it:
Pointing to the alleged loss of its cell phone download business in the ensuing years, Perfect 10 cries foul. Perfect 10 reasons that the market for reduced-size images has dried up since 2007, and Yandex has began providing a thumbnail search service since 2007; ergo, Perfect 10 has been harmed by Yandex. This simple correlation, without more, does not constitute sufficient evidence that Yandex’s use of 40,000 thumbnail images between June 2012 and March 2013 affected Perfect 10’s market. Significantly, in a prior litigation against Google, Perfect 10’s president stated in a sworn declaration that Perfect 10’s cell phone download business “effectively ended in 2006.”
Later, it attempts to show “proof” by having its own staff download images, and the court says that’s not proof of direct infringement, because you can’t infringe your own copyrights:
Perfect 10 submitted declarations from a private investigator, a web developer, and a graphic designer (Dkt. Nos. 167-28–30). In each one, the declarant states they were asked by Perfect 10 to use various Yandex services to download Perfect 10 images to computers located within the United States. Each declarant confirms that this is “possible” and then explains the process by which they each accomplished the task. These declarations do not change any of the conclusions herein. Perfect 10’s own downloads (and downloads by its agents) conducted as part of its investigation do not constitute direct infringements because Perfect 10 cannot infringe its own copyrights. Nor do any of the declarations rise to the level of expert testimony showing that any particular quantity of such downloads have in fact occurred. This order agrees that it is possible for someone in the United States to download infringing copies of Perfect 10 images using Yandex’s search engine. The summary judgment record does not establish, however, that any such downloading has actually occurred.
Every time we see one of these cases, it makes you wonder about the lawyers that Perfect 10 employs, as they don’t seem to be very convincing. However, once again, we get another good ruling that favors fair use for search, secondary liability protections, and another smackdown of Perfect 10. Somehow, I doubt this will be the last time.
Filed Under: copyright, fair use, russia, search, thumbnails
Companies: perfect 10, yandex
Comments on “Perfect 10 Loses Yet Another Ridiculous Copyright Lawsuit”
In some ways, Perfect 10 is actually incredibly useful: it has helped set a number of important precedents against over-aggressive copyright enforcement that have come in handy in other cases.
Perfect 10 has also gotten us some great language for copyright plaintiffs:
Source: http://scholar.google.com/scholar_case?q=508+F.3d+1146&hl=en&as_sdt=2,19&case=9280547131690965273&scilh=0
Thanks, Perfect 10!
But you ignore the stuff you don’t like, so that doesn’t count, right? LOL!
Re: Re:
And what exactly are the “simple measures” that Google could take to prevent damage to Perfect 10’s copyrighted works? Google would have to know it’s Perfect 10’s works in the first place, then would have to know that the use of the work was infringing. Someone would have to tell them that I suppose.
If only there were a notice and takedown procedure of some sort…
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And what exactly are the “simple measures” that Google could take to prevent damage to Perfect 10’s copyrighted works?
The context there was Google’s inline linking of Perfect 10’s images. The “simple measures” would be to disable or remove the links.
Google would have to know it’s Perfect 10’s works in the first place, then would have to know that the use of the work was infringing. Someone would have to tell them that I suppose.
Right, that’s why the Ninth Circuit says “Google could be held contributorily liable if it had knowledge that infringing Perfect 10 images were available using its search engine” and didn’t take them down. Contributory liability requires (1) knowledge and (2) material contribution.
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And what exactly are the “simple measures” that Google could take to prevent damage to Perfect 10’s copyrighted works?
The context there was Google’s inline linking of Perfect 10’s images. The “simple measures” would be to disable or remove the links.
Google would have to know it’s Perfect 10’s works in the first place, then would have to know that the use of the work was infringing. Someone would have to tell them that I suppose.
Right, that’s why the Ninth Circuit says “Google could be held contributorily liable if it had knowledge that infringing Perfect 10 images were available using its search engine” and didn’t take them down. Contributory liability requires (1) knowledge and (2) material contribution.
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Then what’s the point being made here? Google was not found contributorily liable. And contributory liability was not a new concept. So how does that help copyright plaintiffs again?
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Then what’s the point being made here? Google was not found contributorily liable. And contributory liability was not a new concept. So how does that help copyright plaintiffs again?
It was the first appellate opinion to say that merely linking to an infringing file satisfies the material contribution prong of contributory infringement. Add knowledge, and you have liability.
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Actually no, add knowledge AND an ability to remove said link (they can, but it is a listed part of the test) AND did not remove the link after gaining said knowledge. The liability comes from being notified that the link is infringing AND ignoring it OR not being able to simply remove the link. Knowledge is not the only key in the chain. The final key is allowing known (by notification or affirmative confirmation in descriptions i.e. not just “GAME OF THRONES” but “ILLEGAL GAME OF THRONES”, or not just “Diablo Hack” but “ILLEGAL Diablo hack”) infringing material to remain linked. In fact, this is exactly the safe harbor described in the DMCA. Techdirt has been arguing that this is the standard for as long as I’ve been reading. It isn’t new and has been the basis of rulings in support of google and other search engines for years.
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You miss the argument of his statement as a whole, as summed up in his last line:
[i]If only there were a notice and takedown procedure of some sort…[/i]
Namely, the AC (AC1) to which he (AC2) was responding was claiming Mike ignored the ruling on where Google could be held liable. So AC2 pointed out that the court effectively ruled that google had to…obey the existing notice and takedown system it already obeyed otherwise it could be found liable. AC2 left it to the readers to realize this is exactly what Mike has been arguing, that under current law, if you abide by notice and takedown, you (generally) cant be liable for infringement. Thereby chopping off the attempted slap at Techdirt’s ‘hypocrisy”
Re: Yep, KNOWLEDGE is dangerous to Google and other grifters.
“Applying our test, Google could be held contributorily liable if it had knowledge that infringing Perfect 10 images were available using its search engine, could take simple measures to prevent further damage to Perfect 10’s copyrighted works, and failed to take such steps.”
That’s what I been saying, though arrived at it through common law and common sense. Knowingly facilitating crime isn’t “secondary” liability, except that failing to take action is a second crime by a second party!
And that’s why “file hosts” such as the happily defunct Megaupload go to great lengths to avoid and deny knowledge of what they’re selling.
But don’t expect accolades from Mike and his fanboys for pointing this out! Admitting this would just about put Mike out of biz.
Re: Re: Yep, KNOWLEDGE is dangerous to Google and other grifters.
You, once again, ignore that google can not know if a hosted image is infringing. Assuming it knows who owns the copyright to an image, it still can not determine if the image they found is: being hosted by the owner; an authorized, legal reproduction; a fair use, legal reproduction; or an illegal reproduction. Knowing WHAT the image is doesn’t help google determine infringement.
The ruling effectively argues that if 1) Google is notified that the images were infringing (notice) and 2) COULD take simple steps to remove them (takedown), and 3) failed to take those steps (ignored the notice) then and only then are they liable. You assert that 1) Google already knows what is infringing, 2) could easily remove all infringing content, and 3) isn’t doing so because it prefers to wave its dick at copyright holders. Your test is not legally viable.
Megaupload was in full compliance with this system (notice and takedown) until ORDERED to retain data (aka ignore the notice). Thats why the DOJ doesn’t want them to have server access, MEGA could prove they were in full compliance.
As for your argument that “file names” prove otherwise, I posit 2 fully legal uses that could be censored in your strategem.
I am a amateur composer and percussionist. I have transcribed and arranged new renditions of “Music of the Night” from Phantom of the Opera. I share the new sheet music with my contemporaries via a private link for use in a performance we are going to have at some point in the future. Everything I have done is legal, falling under various parts of fair use. But “Music of the Night Arrangement.zip” is, under the file name doctrine, infringing.
After the live performance where each song was recorded, they are uploaded to the file locker so each performer has access to the work he holds partial copyright to (as a cover performance), and we had previously agreed to release the cover to free distribution. The file “Music of the Night – Art District Concert 09.30.13.flac” may be ours. Its a legally distributed copyrighted work. But that file name sounds like its a recording of “Music of the Night”. So without context, is it infringing? Id suggest under the ‘File Name Doctrine” it would be. but it isn’t.
So tell me again how, absent the notice part of the notice and takedown system, Knowlege of infringing works exists?
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I’m not sure of your point. That ruling doesn’t say anything that wasn’t already well established.
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I’m not sure of your point. That ruling doesn’t say anything that wasn’t already well established.
It was well established that linking to infringing content satisfies the material contribution prong of the contributory infringement analysis? It wasn’t. That’s why the Ninth Circuit overturned the district court on that point.
Thanks, Perfect 10?
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It isn’t new and has been the basis of rulings in support of google and other search engines for years.
Techdirt doesn’t believe search engine linking (which by its nature is not curated but rather procedurally generated) generates infringement but the courts have argued that it might be but that google can’t know what is infringing so as long as they remove it there is no liability.
You need more then Linking. You need linking and a refusal to respond to notices that it is infringing. Just linking means google is liable as soon as it is notified, wether it removes it or not. the standard has a third requirement, that they don’t move to remove links to infringing works. The standard is just being universally applied.
Re: Re: Re:2 Re:
It isn’t new and has been the basis of rulings in support of google and other search engines for years.
Nonsense. Even the district court said that Google was not materially contributing to the infringement and thus could not be a contributory infringer. Point to one single court that before the Perfect 10 v. Amazon/Google opinion said that linking can give rise to contributory liability. You can’t.
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sorry, should have said “point to one CIRCUIT court that before…”
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That isn’t quite what the ruling says. The ruling says that linking can be contributory infringement if certain conditions apply. It also says that those conditions didn’t apply in the case of Google’s linking.
The underlying rationale for the ruling had already been well established prior to the ruling.
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But you ignore the stuff you don’t like, so that doesn’t count, right? LOL!
Yeah, except that nobody here has argued against that part of the ruling. So, nice straw man argument.
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Yeah, except that nobody here has argued against that part of the ruling. So, nice straw man argument.
LOL! You yourself once claimed that Perfect 10 v. Amazon didn’t stand for the proposition that knowingly linking to infringing content could lead to contributory liability. I remember walking you through it point by point, and you totally unable to grasp any of it. Good times.
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You yourself once claimed that Perfect 10 v. Amazon didn’t stand for the proposition that knowingly linking to infringing content could lead to contributory liability.
I have said – and do say – that merely linking to infringing content is not enough to lead to contributory liability.
And so does this court.
You must have three things:
1. Material contribution to actual infringement
2. Actual knowledge of specific infringing material
3. The right and ability to control the material contribution
Merely linking to content does not satisfy all three prongs. It satisfies the first, and all search engines (that I know of) have the third. It’s the second prong that is missing. You must do more than merely link to infringing content – you must have “actual knowledge that specific infringing material is available” via that link. (As quoted in this case; emphasis in the original.)
I’ve also said – and I still say – that this entire test simply cannot be used to determine criminal infringement. The entire doctrine of secondary liability does not come from the copyright statutes, but is imported from patent law (as this case, again, makes clear), and you can’t do that with criminal laws.
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There is a 4th requirement: Non-action if and when such knowledge comes to light. The contribution isn’t material if action is taken to prevent infringement once you find out about aid infringement
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There is a 4th requirement: Non-action if and when such knowledge comes to light.
Oops, yes, you’re right. I just thought that would be assumed.
Re: Re: Re:2 Re:
The two prongs of contributory liability are (1) knowledge and (2) material contribution.
Your third prong, about “right and ability to control” is one of the prongs of vicarious liability.
Your mixing up the doctrine.
Re: Re: Re:3 Re:
Your third prong, about “right and ability to control” is one of the prongs of vicarious liability.
I specified that they have the right and ability to control the material contribution.
As the passage that you quoted makes this clear. Because inline linking can materially contribute to infringement,
If you want to nitpick and say “the right and ability to control the material contribution” is somehow different than the ability to “take simple measures,” then fine.
In any case, there are in fact four prongs, if you want to get technical. In the exact phrasing of the various ruling:
1. Material assistance to direct infringement: “substantially assists […] distribut[ing] infringing copies […] and assists […] users to access infringing materials” (this case); “evidence of actual infringement by recipients of the device, the software in this case” (Grokster); “Providing a service that allows for the automatic distribution of [material], infringing and noninfringing” (Netcom); “engage in personal conduct that encourages or assists the infringement” (Napster)
2. “actual knowledge that specific infringing material is available using its system” (Napster)
3. “able to take simple measures to prevent further damage to plaintiffs’ copyrighted works” (Netcom)
4. “failed to take such steps” (from… well, all cases, really)
The most important aspect – the one that all cases, including this one, focus on the most – is the second “prong.” This is because a contributory infringer is “one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another” (Gershwin)
Or, as the court said in Grokster, “one infringes contributorily by intentionally inducing or encouraging direct infringement.”
In fact, the issue that this court had with the district court ruling was not that hyperlinking could not be a “material contribution.” The exact quote from the district court: “Nevertheless, P10 argues, Google contributes differently: it provides an ‘audience’ and brand recognition for infringing third-party websites and it advertises for the sites. P10 overstates Google’s actual conduct and confuses search technology with active encouragement and promotion of infringing activity.”
This court was saying that you do not need “active encouragement and promotion” to be liable for contributory infringement. Instead, “a service provider’s knowing failure to prevent infringing actions could be the basis for imposing contributory liability.”
That was the entire issue.
As far as the hyperlinking issue, I’ll let a quote from this case speak for itself:
In other words: already settled, for the most part, and not the reason this court criticizes the district court.
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Also:
Perfect 10 has also gotten us some great language
All of what you quoted was taken from earlier rulings – Napster, Grokster, and Netcom. It was well-settled case law long before Perfect 10 came around.
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All of what you quoted was taken from earlier rulings – Napster, Grokster, and Netcom. It was well-settled case law long before Perfect 10 came around.
Then why did the district court in Perfect 10 v. Amazon say that linking to infringing content was not material contribution? Do you ever know what you’re talking about, Karl?
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Then why did the district court in Perfect 10 v. Amazon say that linking to infringing content was not material contribution?
Because they mixed up “contributory infringement” and “inducement,” ruled (correctly) that Google wasn’t guilty of inducement, and decided (erroneously) that they weren’t guilty of contributory infringement either. From footnote 11 (the very first footnote in the section you’re quoting):
Do you ever know what you’re talking about, Karl?
More than you, obviously.
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No, you are ignoring the part of the test that requires non-action in the face of notification. Google does not meet the non-action standard when faced by notification that infringement exists. It performs a basic reality check and then removes the ‘infringing link’.
Re: Re: Re:3 Re:
No, you are ignoring the part of the test that requires non-action in the face of notification.
AJ was talking about a subject that was a lot more specific than that. (Not that there was any indication of this in his original post, of course.)
In theory, without a “material contribution” to infringement, it wouldn’t matter. Google could have taken no action whatsoever in the face of notification, and still not been guilty of contributory liability, because their actions didn’t contribute to infringement in the first place.
That’s what the circuit court decided. Thus, they never even considered whether Google took action in the face of notification. (Supposedly – the Ninth Circuit’s characterization of the district court’s ruling is a bit off, IMHO, but that’s not important.)
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More than you, obviously.
LOL! It amazes me that your posts get marked “insightful” despite you not making any sense or having any idea what you’re talking about.
The Ninth Circuit explicitly disagrees with the district court on whether Google, by merely inline linking to infringing content, is materially contributing to infringement:
So it is EXACTLY as I said.
Re: Re: Re:3 Re:
Repeating the same passage you quoted originally, while completely ignoring everything I said, is not going to make your statement any more true.
Read this part of what you quoted:
Now read this passage from footnote 11 in the same ruling:
So, exactly as I said.
Re: Re:
“Perfect 10 has also gotten us some great language”
“But you ignore the stuff you don’t like”
I’m sure he doesn’t ignore the language that’s laughably incorrect. But, he doesn’t have to agree with it, just as the court doesn’t have to agree with your favourite idiots. You’re quoting people whose arguments have been laughed out of court, and pretending they have some kind of point. That in itself is pretty hilarious.
and how would google know the images were copyrighted in the first place.
Google are not going to be your police force so forget about it. As the user said above me we have a heavily abused take down process that covers that angle so suck it up and police your own stuff.
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and how would google know the images were copyrighted in the first place.
Google would know that the images are copyrighted because, at least in that case, Perfect 10 told them. This isn’t rocket science.
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Right, at which point google would take them down (the case isn’t about google though….) The problem being that perfect 10 argues that Search engines are violating their copyrights by not performing takedowns whenever they find a Perfect 10 image, as in before the notice.
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And my point is that Perfect 10 got us a beautiful opinion out of the Ninth Circuit that says linking to infringing content is material contribution for contributory infringement analysis. Thanks, Perfect 10? LOL!
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And I’ll say again, the non-action requirement affects the concept of material contribution. You are not materially contributing to infringement if you take action to prevent it when notified such infringement is taking place.
I can think of two ways search engines can avoid linking to infringing material:
1) Shut down and go home.
2) Only index vouched for commercial sites, that is become a shopping catalog.
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Ooops, meant to reply to the first reply to the troll.
"phase"
“doesn’t appear to phase the company” should be “faze” – http://dictionary.reference.com/browse/faze
Every time we see one of these cases, it makes you wonder about the lawyers that Perfect 10 employs, as they don’t seem to be very convincing.
I wonder about this every time I read a case like this. Their lawyers should be advising them “you won’t win this, don’t even try, there’s no way to make even a reasonably compelling argument”. So either Perfect 10 has terrible lawyers, or they’re ignoring their lawyer’s advice.
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Their lawyers should be advising them “you won’t win this, don’t even try, there’s no way to make even a reasonably compelling argument”. So either Perfect 10 has terrible lawyers, or they’re ignoring their lawyer’s advice.
Having seen the lawyer they used for many of these cases at a recent conference, I’ll say Perfect 10 had terrible lawyers (not sure about the current ones). Never seen anyone quite so confused or angry about settled law. His entire speech was about how “evil” Google is and how it needs to be stopped — based on a large number of misconceptions, misunderstandings and flat out lies.
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That there’s some tech dirt.
Well that sounds like good news.
Heading now to Yandex to get some good download material. The Streisand effect is helping me find some good images.
Thanks perfect 10!!!
Expect AVN to put a pro-Perfect 10 spin on this.
Help wanted
So… In a not-too roundabout way, Perfect 10 is sorta-kinda-maybe helping the good guys, and consequentially footgunning itself as well as other trolls. Sounds like Perfect 10’s lawyers should be encouraged to maximize their stoopid. Is there any direct way of assisting them to do so?
Perfect 10
The magazine where everybody’s a 6.
Hey, antidirt.
You were wrong.
You’re also trash.