Perfect 10, purveyor of copyright lawsuits and internet nudity, has been thwarted in yet another claim against Google for copyright infringement.
The Ninth Circuit Court of Appeals refused to grant Perfect 10's request for a preliminary injunction on Wednesday because the skin site had failed to demonstrate irreparable harm in its claim against the Internet giant.
In case you missed Superbad, Perfect 10 is a website that creates and copyrights photographic images of nude models for commercial distribution through its subscriber-based website. This particular claim stemmed from Google's thumbnail search returns; Perfect 10 claims that it is on the verge of bankruptcy because subscribers will not pay for monthly subscriptions when they can view Perfect 10 content through Google thumbnails.
In order to obtain the protections of the Digital Millennium Copyright Act (DMCA), Google has developed a copyright infringement notification policy for each of its Internet services. Under the DMCA, Google has a designated agent to receive a "takedown notices" of claimed infringements. Under Google's notification policies, the takedown notice must include, among other things, the URL for the infringing material.
Google forwards the takedown notices it receives to the website "chillingeffects.org," a nonprofit, educational project run jointly by the Electronic Frontier Foundation and various law schools, which posts copyright infringement notices on the Internet.
As a result, even if Google removes Perfect 10's images from its search results, a person can still find the URL for the allegedly infringing images on chillingeffects.org. While both educational and hilarious, this understandably angers claimants like Perfect 10.
Perfect 10's case relied on several declarations by its founder, president, and financial backer, Dr. Norman Zada, who stated that the number of thumbnail versions of Perfect 10 images available via Google's Image Search had increased significantly between 2005 and 2010 while the company's revenues "declined from close to $2,000,000 a year to less than $150,000 a year." Zada claimed the company had suffered over $50 million in losses from 1996 to 2007, and at least $3 million annually since then, pushing the company "very close to bankruptcy."
The Ninth Circuit didn't buy the argument, writing that Perfect 10's imploding financials alone were insufficient to prove that Google thumbnails present an irreparable harm, and that Perfect 10 had never offered the court evidence of a time when it had been financially sound.
Also lacking in its case? Evidence that any subscriber had stopped paying for access to Perfect 10's naked pics in favor of Google thumbnails.
Perfect 10 may have suffered a setback in another copyright lawsuit, but there's no indication that it will stop litigating. Fear not, attorneys: there will be opportunities for Perfect 10 billables in the future, either in copyright or bankruptcy.
- Perfect 10, Inc. v. Amazon.com, Inc., 06-55405 (FindLaw Cases)
- Perfect 10, Inc. v. Visa Int'l Serv. Ass'n, 05-15170 (FindLaw Cases)
- Ninth Circuit Judicial Conference August 15-18 (FindLaw's Ninth Circuit blog)