BEVERLY HILLS, CA – Perfect 10, Inc., has filed for a preliminary injunction against Google, Inc., seeking to enjoin Google from “copying, displaying, and distributing Perfect 10 copyrighted images,” according to a statement issued by Perfect 10.In November of 2004, Perfect 10 filed a complaint against Google, alleging copyright infringement and assorted other claims. Perfect 10 contends that Google “is displaying hundreds of thousands of adult images, from the most tame to the most exceedingly explicit, to draw massive traffic to its web site, which it is converting into hundreds of millions of dollars of advertising revenue,” according to the company’s release.
“We’ve been working on this for a long time,” Dr. Norm Zada, founder of Perfect 10 Magazine, told YNOT. “Hopefully people are starting to realize that Google is copying people’s materials without consent.”
In Perfect 10’s preliminary injunction brief, the company states, “Through its Image Search, Google displays and distributes, without consent, over 1,000 of Perfect 10’s best copyrighted images,” later adding that “Google not only copies and displays Perfect 10 images itself, but also links them to infringing sites with which Google has partnered and from which Google receives revenue through its “AdSense” advertising program.”
The brief also states that Perfect 10 has sent Google thirty-four detailed notices of infringement since May 2004, and that even though the notices complied with the Digital Millennium Copyright Act (DMCA) ‘take down’ requirements, “Google continues to display at least 1,043 Perfect 10 copyrighted images from the exact same infringing sites and web pages identified in notices, in some cases sent to Google 400 days earlier.”
Zada said that while the webmasters, websites and URL’s associated with the infringement on their copyrighted material vary and change over time, “There is one infringer that is a constant in this whole thing, and that’s Google.” He added that a “very substantial number” of the copyrighted images that Google has failed to take down have been up for over 180 days since Perfect 10 delivered the notices of infringement to Google.
Some experts doubt Perfect 10 will prevail, however, suggesting that the suit may not survive an early motion to dismiss by Google. While many have compared the case to MGM v. Grokster, Robert Atkinson, vice president and director of the Technology and New Economy Project at the Public Policy Institute, does not see the cases as similar.
“There are fairly clear-cut cases where the business model is selling infringing content, like Grokster, which claimed it wasn’t covered by the DMCA,” Atkinson told UPI. “It seems to me that Google should be covered by the provisions of the DMCA.”
Google, naturally, agrees with this reading of the situation. “We believe the lawsuit is without merit and we will defend against it vigorously,” wrote Steve Langdon, a Google spokesman, in an e-mail to the United Press.
Zada takes strong exception to the notion that Google is innocent in these instances of ongoing copyright infringement, and asserts that Amazon and Google both make illegal use of copyrighted material to drive traffic and produce revenue. “Amazon uses our images to get traffic to their site in order to sell people books, while Google uses the images to generate traffic so they can profit from advertising.”
Perfect 10’s preliminary injunction brief anticipates many likely counter-arguments from Google, and details what the company argues are crucial differences between this case and previous cases like 2003’s Kelly v. Arriba Soft Corp. The brief contends, among other things, that the “Fair Use” defense is not available to Google, asserting that Google use of full size images is not Fair Use.
“Google does for free what Perfect 10 does for its paying customers – display and distribute Perfect 10’s full size images,” the brief states, adding “Google uses Perfect 10’s copyrighted works as a ‘draw’ to attract customers to Google’s commercial website, as well as to send customers to infringing sites from which Google earns additional advertising revenue.”
Perfect 10 filed for a similar preliminary injunction against Amazon.com for copyright infringement in July of this year. The injunction hearing in the Amazon case is scheduled for November 7th; Zada said the company is going to have both motions heard at that time.
