from the keep-it-up dept
In 2011, we wrote about Perfect 10's decision to sue Usenet provider Giganews, and once again, Perfect 10 has received quite the judicial smackdown from a judge who is clearly not at all impressed by Perfect 10 and its owner, Norman Zada. There are some procedural issues here, as the ruling is on Perfect 10's motion for summary judgment (which fails in every way), but the judge notes various ridiculous procedural mistakes by Perfect 10, including trying to block declarations that were filed properly -- while also noting that Zada's own declaration is almost certainly not admissible as "some of Zada's statements are tantamount to expert testimony that Zada is not qualified to give." Sloppy lawyering does not make a judge happy. But getting to the meat of the case, and Perfect 10 loses on, well, everything.
Perfect 10 argued that Giganews didn't have a valid repeat infringer policy as required by the DMCA to obtain safe harbor protections. But the judge points out that's just wrong. First, Giganews clearly does have a repeat infringer policy. Perfect 10, however, appeared to argue that it wasn't a "reasonable" policy because it doesn't delete all messages from a user, just the ones claimed to be infringing. The judge notes that's not the law.
Giganews acknowledges that it removes only the specifically-identified infringing messages posted by a repeat infringer, and not all of the messages ever posted by a repeat infringer. The Court is not persuaded that § 512(i)(1)(A) requires a service provider to disable or delete all messages a repeat infringer has ever posted. By its terms, the section requires “termination . . . of subscribers and account holders,” not the deletion of messages. In addition, by Plaintiff’s reading, § 512(i)(1)(A) would require a service provider to take down all of a user’s messages, not just the infringing ones. Because deleting noninfringing messages does not serve any infringement-preventing purpose, there is no justification for reading such a requirement into the statute. In short, the Court will not read into the statute a requirement that its plain language does not support and that goes far beyond stopping and deterring copyright infringement.Then, Perfect 10 argued that because only 46 "repeat infringers" had their accounts terminated, despite removing 531 million messages that were claimed to be infringing, it shows the policy is not adequate. The judge isn't buying it, noting that this "conclusion is not compelled by the evidence," which is further explained later, once you realize that many of the messages removed are just via other usenet providers, so not even direct users of Giganews (meaning there's no way for them to remove those users anyway). Perfect 10 also tries to argue that since Giganews can't identify all of the users (because many are not actually from Giganews), that shows the policy is inadequate. Thankfully, the judge appears to realize that this is a function of usenet itself, and isn't Giganews' specific issue:
However, that a Usenet service provider cannot identify all users whose messages reside on its servers appears to be a function of how the entire Usenet works. According to Giganews, all Usenet service providers encrypt the data that identifies the user who posted a message; this encrypted data is reflected in a part of the message header called the X-trace field. Only the Usenet service provider with whom an account is registered can decrypt the X-trace field it has attached to a message posted by that user. Many of the messages hosted on Giganews servers are posted through accounts registered with other Usenet providers. Because Giganews cannot decrypt the X-trace field on such messages, it cannot link such messages to any specific users, and thus cannot apply its repeat infringer termination policy to such users.It's nice to see judges understand at least a little basic technology.
The judge also takes issue with the way that Perfect 10 sends its DMCA "notices." We've seen this multiples times before. In other cases, companies have highlighted that Perfect 10 seems to delight in sending notices that make it nearly impossible to actually find and takedown the content, meaning that they're not valid DMCA notices. For example, in the case against Google, Perfect 10 sent Google image files, without actually sending links to where those images were, or one what searches they were appearing. Basically: here are the images, block them. But that's not how the DMCA takedown process works. It's almost as if Perfect 10 tries to make it hard for sites to take down content it claims is infringing so that it can sue (hmm....). The judge here is not impressed, as it appears that Perfect 10 also tried to make things complex for Giganews:
At this point, a description of Plaintiff’s Notices is in order. Plaintiff’s Notices instruct Giganews to use certain newsreaders to conduct searches of specific names within certain newsgroups, and then tell Giganews that all of the messages yielded by those searches on a certain date contained infringing material. Along with (verbose) written instructions for performing these searches, Plaintiff’s Notices include pages of thumbnail images of the infringing materials and/or screen shots of the newsreader interface reflecting the search results. Plaintiff contends that this satisfies § 512(c)(3)(A)(iii) because the search results and thumbnails both “identify” the infringing messages and also provide sufficient information to permit Giganews to “locate” those messages.Giganews, in turn, points out that this isn't nearly enough information to find and disable those messages. It points out, quite reasonably, that it needs message-IDs for each message. The court agrees, pointing out that the caselaw is pretty clear here -- even citing a previous Perfect 10 case. The judge goes through a lengthy description of just how difficult it would be for Giganews to actually comply with Perfect 10's requests, given that they're presented in a nearly impossible to follow manner. Perfect 10 tried to argue that because Giganews did still remove some messages this way that it shows it can do it, but the court isn't buying it -- in fact, suggesting that Giganews actually went above and beyond what is required by the law.
Giganews has presented substantial evidence of the untenable burden it would face if every DMCA notice it received required it to undertake the Message- ID extraction process Plaintiff expects of it. That Giganews evidently chose to undertake this process for two of Plaintiff’s Notices does not necessarily mean that those Notices satisfy § 512(c)(3)(A); it may mean that Giganews went beyond its duty.Basically, it's yet another complete loss for Perfect 10, who still seems to keep filing these lawsuits because some companies (you know who you are) actually decide to settle and pay up, rather than push back against this bit of trolling.