Adult publisher Perfect 10 suffered a pair of unfavorable appeals...
Adult publisher Perfect 10 suffered a pair of unfavorable appeals rulings Monday. The Supreme Court denied cert. in Perfect 10 v. CCBill, a case against credit-card processors for Web sites that were illegally hosting Perfect 10’s nude images. The…
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9th U.S. Circuit Court of Appeals had upheld a broad grant of immunity for service providers under the Communications Decency Act, which would preempt state intellectual-property law claims by Perfect 10 and others (WID June 1 p6). The Supreme Court action practically nullifies the right of publicity in state law, Perfect 10 President Norm Zada told us. “The celebrities don’t realize what just happened,” and will have great difficulty preventing the unauthorized commercial use of their names on the Internet, he said. The 9th Circuit Monday amended its May ruling in Perfect 10 v. Google, which found that Google could create thumbnails of infringing images because they were “transformative” but said Google may be liable for linking to infringing images themselves (WID May 17 p1). That case was remanded to a district court in Los Angeles. The appeals court reinstated a “potential cause of action” against Google by saying the search company had the burden of proof to show that its thumbnails constituted fair use, and that it must remove infringing material when notified, Zada said. But the ruling is actually “somewhat worse for us,” because the court also said Google was likely to prevail on its fair-use defense, he said. The 9th Circuit panel wasn’t swayed by screenshots that Perfect 10 submitted last month, in which Google searches for Perfect 10 models returned “bestiality images right next to our models.” “In retrospect I wish I had never filed” a motion for preliminary injunction against Google, in light of the ruling, Zada said. His business has largely shut down -- the print Perfect 10 closed and the Web component is struggling for subscriptions and mobile downloads because of Google-enabled infringement, Zada said. He still believes Perfect 10 will win at trial, but “it’s going to be too late” for his business. Every new court order before trial starts will delay the case further, he said. Zada has spent $15 million in litigation. “I can see that people who are playing by the rules are losing big time.” We couldn’t reach Google right away for comment.