Summary of Perfect 10 Decision

By John Ottaviani

Eric suggested that I post this brief summary of the Perfect 10 v. Amazon decision:

The 9th Circuit issued a lengthy opinion today, largely favorable to search engines and ISP’s. In 2006, the district court made its findings on Perfect 10’s motion for a preliminary injunction, so there has been little discovery and no trial yet. Google and Perfect 10 both appealed certain aspects of the district court’s decision. Briefly, in today’s decision, the 9th Circuit:

—affirmed the district court’s finding that Perfect 10 was likely to prevail on its claim that Google’s display of thumbnail versions of Perfect 10’s copyrighted photographs constituted direct infringement of Perfect 10’s display right, but reversed the district court’s finding that this was not fair use (in other words, the 9th circuit said it was fair use)

—affirmed the district court’s finding that Perfect 10 was not likely to prevail on its claim that Google’s “in-line linking” to full size versions of the photographs on 3rd party websites infringed Perfect 10’s display or distribution rights

—reversed the district court’s finding that Perfect 10 was unlikely to prevail on its contributory infringement claim, because the district court applied the wrong test. The 9th Circuit remanded for the district court to determine whether Google knew of infringing activities yet failed to take “reasonable and feasible steps” to refrain from providing access to infringing images, and whether Google is likely to prevail on its defense under Section 512 of the Digital Millennium Copyright Act (DMCA). The 9th Circuit clearly stated that the Section 512 defense is available for both direct and secondary laibility claims (citing to its Napster decision).

—affirmed the district court’s finding that Perfect 10 was unlikely to prevail on its vicarious infringement claim, because Perfect 10 was unlikely to be able to show that Google had a right and ability to stop or limit the infringing conduct of third-party websites

Overall, a win for Google and Amazon.com (but not a home run, given the specter of contributory liability). Look for some discovery and summary judgment motions on the contributory liability claim and the Section 512 defense in the upcoming year.

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