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.

Reader Comments (rss)

(Flattened / Threaded)

  1. icon
    DannyB (profile), May 8th, 2012 @ 11:54am

    The Perfect 10 of Righthaven like scams

    Will we hear that Perfect 10 is just providing guidance to other companies in the same line of extortion scam like businesses?

    Didn't Perfect 10 get the guidance from Righthaven? Or did they get it, but just ignore it?

    The lawyers were nestled all snug in their beds
    While visions of settlements danced in their heads

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

  2. icon
    Skeptical Cynic (profile), May 8th, 2012 @ 12:18pm

    Seems like the calls for lose pays should be stronger...

    Simple question: Why are not more companies spending their lobbying dollars to get a loser pays scheme implemented? Seems like good business sense.

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

  3. identicon
    Anonymous Coward, May 8th, 2012 @ 12:49pm

    Re: Seems like the calls for lose pays should be stronger...

    No lawyers want to wait for the 'loser' to pay up when they can just keep extorting citizens for cash....

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

  4. icon
    Marcel de Jong (profile), May 8th, 2012 @ 1:01pm

    Of course, I always go to Tumblr to get my fill of Perfect 10 porn.

    Right, I have never heard of people doing that. Me thinks Perfect 10 is grasping at straws again and they think they've found a soft target.

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

  5. identicon
    Anonymous Coward, May 8th, 2012 @ 1:03pm

    It's a pretty rum state of affairs if your business model is so predatory and amoral that you have to pretend to be a pornographer.

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

  6. identicon
    Joshy, May 8th, 2012 @ 1:16pm

    Perfect 10 claims 200 images were used.... Compare that to the gazillion of millions of photos on tumblr.

    It's like them complaining about the theft of sand from the beach by pointing to the sand stuck in your socks from visiting the beach.

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

  7. identicon
    Anonymous Coward, May 8th, 2012 @ 2:20pm

    Perfect 10 you used to be cool, you've changed, your not the same. You let me down. For shame.

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

  8. icon
    Jim D (profile), May 8th, 2012 @ 3:53pm

    It's about the publicity

    I doubt this is about Perfect 10 believing there to be any infringement. I guessing it's more about the free publicity that gets throw their way when they file suit against any well-known company.

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

  9. icon
    That Anonymous Coward (profile), May 8th, 2012 @ 5:18pm

    Re: It's about the publicity

    I thought Perfect 10 was pretty much out of business except for chasing people over images they owned from a while ago.

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

  10. identicon
    Rekrul, May 8th, 2012 @ 8:51pm

    Has anyone here actually seen these mythical Perfect 10 Magazine images?

    I ask because I've actually looked for them and all I ever seem to find are random photos of women who are described as being a "perfect 10", but nothing from the magazine itself.

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

  11. icon
    G Thompson (profile), May 8th, 2012 @ 9:44pm

    The tumblr search engine searches three things:

    1. tags that users create on any posts (some use them some don't)
    2. Comments that users place on posts that they have either created themselves or reblogged
    3. The links that people place on photo's/posts (they become part of description)

    So the actual search engine is only what users have placed there, not what tumblr has done. Also a user could for example, place the tag "#perfect 10 are complete morons" (tumblr tags can be phrases) on a photo of anything and perfect 10 in their infinite stupidity would also equate this with infringement.

    They are pissing up a rope, and people are beginning to think the reason for the perfect 10 name is that they want a perfect 10 out of 10 for losing cases and for being complete idiots

    Oh and DMCA notices are NOT valid if sent to tumblr users and NOT Tumblr Inc themselves.

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

  12. icon
    G Thompson (profile), May 8th, 2012 @ 9:59pm


    I'm intrigued by Paragraph #28
    28. On December 25, 2011, Mr. Zada, on behalf of Perfect10, sent two (2) DMCA Notices to Tumblr via email to its DesignatedAgent, JohnMaloney. Copies of the first ten pages of the two(2) DMCA Notices sent by Mr Zada to Tumblr on December25, 2011 are attached hereto as Exhibits 9 (time sent 10:07a.m.) and 10 (timesent 12:03p.m.)

    Notice Date?

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

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