John Paczkowski

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On a Scale of 1 to 10, Perfect 10 Lawsuit Rates 0

Skin mag Perfect 10 may have a knack for sourcing naturally beautiful women, but its courtroom skills and understanding of the Digital Millennium Copyright Act are a bit lacking. A federal appeals court ruled yesterday that Google did not infringe on Perfect 10′s copyrights by displaying thumbnail images of its nude photographs, handing fair-use advocates a victory and online nudie sites looking to diversify their revenue an unwelcome setback.

A bit of background: In November 2004, Perfect 10 asked a federal district court judge to enjoin Google from displaying pictures and links to the company’s copyrighted photos. Perfect 10 objected to Google search results displaying thumbnails of its photos, along with the links to third-party sites offering larger versions. The pictures were copyrighted, it said, and nearly all the sites indexed by Google were displaying them without permission. “In some cases, as many as 96% of Google search results on Perfect 10 model names go not to Perfect10.com, but to infringing Google AdSense partners of which Google has received notice,” Perfect 10 proprietor Norm Zada argued at the time. “That’s not legitimate search. Google’s extraordinary gain in market cap from nothing a few years ago to close to $80 billion is more due to their massive misappropriation of intellectual property than anything else. Google is currently displaying over 3,000 Perfect 10 copyrighted images and linking them to Web sites containing numerous other Perfect 10 copyrighted images and in many cases ads for which Google earns revenue. Google is no longer a legitimate search engine. It is a commercial advertising operation determined to increase ad revenue regardless of what rights it tramples on in the process. If all an infringer needs to avoid liability is to provide some sort of a ’search function,’ that will be the end of intellectual property in this country.” An interesting corollary, no? How ironic is it that Zada’s father, Lotfi Zadeh, is widely considered to be the father of fuzzy logic.

Anyway… After months of legal wrangling the Ninth U.S. Circuit Court of Appeals reversed the decision of the lower-court judge, who had prevented Google from displaying thumbnails of Perfect 10 photos improperly posted to other sites. The federal appeals court “rejected Perfect 10’s theory and found that until Perfect 10 gave Google actual knowledge of specific infringements (e.g., specific URLs for infringing images), Google had no duty to act and could not be liable,” Electronic Frontier Foundation attorney Jason Schultz explains. “It also held that Google could not ‘supervise or control’ the third-party Web sites linked to from its search results, something most people (except, apparently, Perfect 10) probably already knew. The rule provides strong guidelines for future development and avoids the kind of uncertainty that could chill start-ups trying to get the next great innovation off the ground. Finally, the court also rejected Perfect 10’s attempts to turn Web surfers into pervasive copyright violators. Specifically, Perfect 10 had claimed that Google users who looked at photos in their browsers were infringing the photos because their computers automatically ‘cached’ a copy of the photo in memory. Thankfully, the ruling … affirmed that any such copying is a fair use and cannot be infringing.”