Adult publisher Perfect 10 suffered another setback in a copyright...

preliminary injunction, saying it hadn’t shown that it was likely to win the case. Perfect 10 has accused RapidShare of complicity in hosting thousands of its photos, which Perfect 10 makes available for a $25.50 monthly fee. But Huff said there were several important differences between RapidShare and other download services, notably the lack of a search function for uploaded files. RapidShare uploaders get a link to their files that they can share with others. “The public cannot enter rapidshare.com and browse through a catalog for desired materials” as library patrons could in another precedential case dealing with the “making available” argument, Huff said. RapidShare is not like the original Napster in that it doesn’t index hosted files, she said. Although RapidShare had “actual, specific knowledge of direct infringement,” from Perfect 10’s takedown request, it doesn’t provide the “site and facilities” for direct infringement as Napster did, she said: Perfect 10 “must show something more” than RapidShare’s “mere existence” that materially contributes to infringement. Though the service said it couldn’t locate and delete files based simply on the images, provided by Perfect 10 in the takedown request, it has identified files in which download links were visible in the photo and removed them, and it has searched third-party sites that index RapidShare files to find others that infringe Perfect 10 copyrights. Perfect 10 hasn’t shown that RapidShare isn’t taking “simple measures” to stop infringement, Huff said. RapidShare also said it canceled its cash reward program for affiliates after it became concerned the program was promoting infringement, and Huff said she didn’t have enough information about the “scope” of its remaining rewards program -- giving users “points” for sharing files to make charitable donations -- to issue an injunction. Perfect 10 hasn’t shown that RapidShare is guilty of inducement, considering that RapidShare showed that its download service was used for legitimate purposes, such as hosting free antivirus software for the German edition of PC World, Huff said. And the publisher hasn’t taken “simple, available measures to protect its property,” such as giving RapidShare a list of links to its infringing files, using a “takedown tool” the service offered to Perfect 10, or bringing its suit far earlier, since there’s evidence Perfect 10 knew in 2005 that its files were on RapidShare, Huff said. RapidShare was rebuked by Huff for not having a designated agent registered with the U.S. Copyright Office, a condition for DMCA protection. It can’t get safe-harbor protection until it has one, she said.