Perfect 10's Latest Bizarre Arguments Against Google Heard By Skeptical Appeals Court

from the out-of-their-league dept

Perfect 10 may be the gift that keeps on giving in filing really ridiculously bad lawsuits that make it damn easy for judges to set smart precedents. The “porn company” that some accuse of not really being a porn company at all, but rather a “copyright troll” who seeks to spread its images far and wide online for the sake of filing lawsuits, has repeatedly sued various search engines and others claiming infringement, and almost always lost. Part of one of its recent losses in a case against Google happened because it did not file actual DMCA notices, but rather sent a spreadsheet of top level URLs (not specific URLs) and a hard drive or DVD containing photos that it claimed were being infringed upon. In response, Perfect 10 is trying to claim that Google forwarding its “DMCA notices” to ChillingEffects itself represented infringement.

The 9th Circuit Appeals court recently heard the appeal on this ruling, which you can listen to below, and to say the judges were skeptical of Perfect 10’s argument would be a supreme understatement. It’s really worth a listen to hear just how annoyed the judges are with Perfect 10’s lawyer, and just how out of his league the lawyer sounds. Using SoundCloud, I’ve highlighted a few of the key points of annoyance by the judges.

My favorite part may be around 8 minutes and 15 seconds in, right after Perfect 10’s lawyer complains that even if their DMCA notices were deficient, it’s still Google’s fault for not explaining to Perfect 10 how to file compliant notices. Judge Kozinski jumps in immediately and questions this:

Kozinski: I’m sorry, where is this requirement that they educate you in how to be compliant with the law? Either the notice is lawfully compliant, or it’s not lawfully compliant. If it is, then you don’t need to change anything. And if it’s not, I don’t see where there’s a requirement that they teach you how to make it compliant.

David Schultz (lawyer for Perfect 10): Well I believe that there’s certainly a requirement to work together to try to make the least possible burden. There’s a whole discussion on what’s is or isn’t burdensome here…

Kozinski: It may be a good idea, or it may not, but where is the requirement?

Eventually, all the way at the end of the hearing, a different lawyer for Perfect 10 claims that the requirement is in section 512(c)3(b)(i). You can check out that section of the DMCA if you’d like, and perhaps help us all out in figuring out where in there it says that if you file a faulty DMCA notice, the recipient has to tell the you how to properly file a compliant notice. I don’t see it. In fact, my quick reading suggests it says the opposite, in that it says the service provider is not liable for having actual knowledge if it receives a faulty DMCA notice… but it’s entirely possible I’m reading that wrong. Copyright lawyers? Want to chime in…?

Perfect 10, somewhat ridiculously, also claims that even if its DMCA notices were faulty, because there were tools out there that Google could have used — including image recognition technology, or just “reviewing the images it finds” — this makes Google liable. Of course, we already have multiple case law rulings that make it clear that the DMCA requires no such proactive techniques.

There’s also an amusing exchange starting around the 10 minute mark, where Perfect 10 tries to claim that Google has — incontrovertibly — caused $20 million in damages to Perfect 10. The lawyer keeps arguing that it’s “obvious” that this is true, based on a statement from Perfect 10’s own CEO. One of the judges asks if there’s any proof that any single customer used to purchase from Perfect 10, but then switched to Google, and the lawyer says no, but it’s obvious that it must have happened.

The discussion about forwarding to ChillingEffects is also amusing. Judge Kozinski asks Schultz to explain how ChillingEffects works and what Google is doing and then — for the second time in the hearing — chides Schultz for not being able to answer a simple “yes” to a question, before digging in:

Kozinski, cutting off Schultz: Have you ever heard of the word ‘yes’?

Schultz: Yes.

Kozinski: I don’t want a whole story. So the things they are sending are entirely within your control? I mean, you could distort the images, you could put a disclaimer on them, you could put yellow polka dots, anything like that, right?

Schultz: The problem your honor…

Kozinski: Yes?

Schultz: Yes.

Kozinksi: Okay. So what’s the beef then? If you know that they’re going to send them to ChillingEffects, and you have it entirely within your power, or your client’s power, to distort the images, to avoid them being used the way you did here, what’s your complaint?

There’s a lot more like that; those are just a few examples.

As for the other side of the case, the judges are also tough with Google’s lawyer. At one point Judge Sandra Ikuta talks about “common sense” solutions, saying that Google knows there’s infringement and why can’t it just use its own search tools to find and block the infringing works. Google’s lawyer points out that Perfect 10 completely exaggerated on the power of its image recognition tools, and that there’s a difference between “image recognition” and “license recognition.” Still, it’s troubling that the judge is even asking this in the first place, as there is no proactive requirement for Google to go above and beyond the DMCA, and yet that appears to be what she’s asking.

Judge Ikuta also asks an odd question of Google, later on, questioning why Perfect 10 can’t put a special “alias” on its images that Google would recognize and then block any image with that alias — and then deal with the counternotices if it takes down too much. However, you would think that this is a clear case of prior restraint. The government should never support a system that is “block first and ask questions later,” so it seems like a strange question to ask.

While the judges do appear to be tough on both sides, it seems like they’re a lot more skeptical of Perfect 10’s reasoning. While Judge Ikuta asked some odd questions, I can’t see those questions really impacting the ruling.

Filed Under: chilling effects, copyright, dmca, infringement
Companies: google, perfect 10