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Recent Court Rulings In Perfect 10 v. Google Lawsuit Pose Substantial Threat to Rights Holders
Aug 06, 2010 (02:08 PM EDT)

BEVERLY HILLS, Calif., Aug. 6 /PRNewswire/ -- Perfect 10, Inc., the former publisher of Perfect 10 Magazine, announced today that as a result of two recent District Court rulings in its six-year-old copyright litigation battle with Google, the rights of copyright holders and celebrities have been substantially impaired. "Copyright owners worldwide are seeing their businesses fail as a result of ongoing massive infringement, and require immediate relief from the Ninth Circuit," says Dr. Norm Zada, President of Perfect 10 and a former professor at Stanford and Columbia Universities. "The Court issued two important rulings in the last few days that will be extremely damaging to all rights holders, and not just Perfect 10, if these rulings are upheld by the Ninth Circuit," says Dr. Zada. "First, the July 26 ruling granted the majority of Google's motions for summary judgment under the Digital Millennium Copyright Act (the 'DMCA'), even though Google is still displaying 22,000 of our images and has not responded to most of our notices of infringement.  Then, on July 30, the Court denied Perfect 10's second motion for preliminary injunction.  This motion sought to stop Google from copying and displaying large numbers of Perfect 10 images, placing Google ads around them, misusing the names and images of our models for Google's commercial purposes, and providing our images to others for publication on the Internet.  

The net result of both rulings is that Google can continue to abuse our intellectual property on a massive scale for its own commercial benefit without paying us a dime, and there is very little we can do about it," says Zada.  "Google is doing the same thing to movie studios, recording companies, magazines, and news reporting organizations," adds Zada.

According to Zada, the rulings are confusing and do not clearly explain how copyright holders can issue notices to protect their property.  But based on his understanding of the rulings, Zada believes that Google can now disregard most notices sent to it by rights holders.

"My interpretation of these rulings is that there are at least four important consequences," says Zada.  

"First, Google can continue to place ads around celebrity images without paying the celebrity. Google can also place anyone's name below a defamatory image of someone else having sex, and there is nothing the victim of this defamation can do about it.  

Second, Google can disregard any notice regarding infringement on paysites that are Google advertisers and from whom Google receives payment for promoting those websites. These rulings allow Google to continue to receive promotional payments from websites that it knows steal and sell massive quantities of movies, software, songs, and other intellectual property.  

Third, Google can continue to display confidential passwords and usernames in its search results.  Presumably, Google can also display credit card numbers, social security numbers, people's addresses, and other highly damaging confidential information, and is not required to remove such information upon notice.  You may want to do a Google search on your social security number and see if it is listed in Google's search results.  

Fourth, Google need only remove links if they go directly to an infringing image or work.  Only approximately 1 Google search result in 7,000 has this property.  So according to these rulings, Google can disregard almost all notices even if they are compliant.  Google can continue to provide thousands of links to a website that it knows steals and sells cars, as long as Google does not provide a direct link to an actual car.  

In short, my interpretation of these recent rulings is that Google can massively exploit other people's property for its own commercial gain, publish whatever confidential information it chooses, and there is not much anyone can do about it," says Zada.

"The recent rulings are disastrous to rights holders for two additional reasons," says Zada.  "First, they do not require Google to take any affirmative action to use image recognition, or any other technology, to prevent the same repeatedly infringed images from endlessly appearing in Google's image search results, or surrounded by Google ads.  Google has the technological capability to stop virtually all of the infringement on its system, but the Court is not requiring Google to do anything," says Zada.  

"Second, the Court has created new and confusing requirements that will make it exceedingly difficult, if not impossible, for copyright holders to send notices that allow them to protect their property, particularly when  thousands of infringements are involved," adds Zada.

"We initially created our DMCA notices by following Google's instructions," says Zada.  "Google didn't process those notices for at least four months.  After we filed our lawsuit, Google claimed that all of our  notices were deficient because Google claimed it couldn't tell which images were infringing.  So we began to provide Google with very sophisticated notices where we made an Adobe color copy of each infringing webpage and marked which images on that page were copyrighted by Perfect 10.  For example, we would do a Google Image Search, make a color copy of that page, and then place check marks by each Perfect 10 thumbnail.  Each of these pages clearly identified the URL where the infringing images were located.  Our Adobe notices are the best DMCA notices I have ever seen.  Despite the fact that Google belatedly processed some of these notices, and other ISPs have processed them within a matter of days, the Court ruled that every one of our Adobe color notices, which took us months to prepare, was deficient.  The Court based its ruling on the incorrect assertion that  providing a copy of the infringed image is not sufficient to identify that image.   In effect, the Court ruled that attaching a copy of the infringing web page with the infringing images on that page clearly marked, made the notice defective.  We believe that was a clear error.        

Perfect 10 provided declarations from other copyright owners who claimed that Google did not respond to their DMCA notices either, or that Google's DMCA policy was a 'sham.' The Court refused to consider those declarations," said Zada.  

SOURCE Perfect 10, Inc.