Legal Research

Perfect 10 continues losing streak

By scott

Porn publisher Perfect 10 has been back in court again. After failed attempts to get the courts to rule that Google, Amazon, Microsoft and others infringed their copyright by offering thumbnail copies of the images ? usually uploaded or stored on other people’s websites, they have now failed in an attempt to get an injunction against German file-hosting service Rapidshare.

Perfect 10 claims by hosting copies of their content on their servers they are directly infringing their copyright, violating their distribution rights, and are additional guilty of contributory infringement.

Users of Rapidshare can upload files to the site and get an url which they can use to share access to that content with friends etc. Rapidshare does not offer a search facility or offer an index of files stored on its servers.

The District Court for Southern District of California found that as Rapidhsare did not make files available and index them in a manner that would make searching for content useful, it is not like Napster or other p2p services and is therefore not making infringing material available in the same way, and the court “declines to hold Rapidshare liable for direct infringement on a theory of deemed distribution.”

The Court did find that Rapidsahre had specific knowledge of direct infringement by some of its users ? due to being contacted by Perfect 10, however the court found rapidshare was not contributorily liable because far from the evidence showing that rapidshare was doing nothing to address to presence of this content on its servers but that “[r]ather, the evidence suggests that RapidShare is using information provided by Plaintiff to locate and remove infringing materials, and is also taking independent steps to identify, locate, and remove infringing files.”

The Court did however say that rapidshare could not currently rely on any DCMA safe harbor protection as it yet to give the US copyright office specific information regarding its designated agent as specified in the legislation.

On Perfect 10’s claim that without injunctive relief, it will be forced into bankruptcy - an argument it used in its case against Google too, If I rememer rightly - Judge Huff responded that the evidence before her didn’t back up this claim and actually showed Perfect 10’s “apparent lack of interest in self-help measures and its delay in bringing this action.” Ouch. The motion for preliminary injunction was denied

Full post as published by Information Overload on May 28, 2010 (boomark / email).