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, 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.

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’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 servers were located in the United States). Perfect 10 does not, however, provide evidence that any of those views were the result of users clicking on thumbnails stored on servers in the United States during that nine-month period. The simple fact that the thumbnail links were stored in’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

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  1. icon
    Karl (profile), 21 Jul 2013 @ 3:32am

    Re: Re: Re: Re: 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,
    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.

    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:
    Both Napster and Netcom acknowledge that services or products that facilitate access to websites throughout the world can significantly magnify the effects of otherwise immaterial infringing activities.

    In other words: already settled, for the most part, and not the reason this court criticizes the district court.

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