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.
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.