Perfect 10 Loses Copyright Suit Against USENET Service Provider–Perfect 10 v. Giganews

Giganews acts as a USENET service provider. Perfect 10 is the litigious pornographer that has helped define Internet copyright law for the last 15 years. It sued Giganews because Perfect 10’s copyrighted images are distributed on USENET. After over three years of pointless litigation, the district court finally put a stop to the lawsuit (in an oddly formatted opinion divided into 3 separate memos).

The court rejected Giganews’ direct infringement for lack of “volition.” The question remains: what does “volition” mean in this context? I’ve always found the term ambiguous. This ruling is perhaps the most explicit I’ve seen suggesting that volition is really about something like proximate causation:

Strict liability may obviate the need for a showing of intent or negligence, but it does not obviate the independent element of causation, which is a necessary prerequisite to Article III standing. At minimum, “there must be a causal connection between the injury and the conduct complained of—the injury has to be ‘fairly … trace[able] to the challenged action of the defendant, and not … th[e] result [of] the independent action of some third party not before the court.’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)….“[T]he purpose of any causation-based liability doctrine is to identify the actor (or actors) whose ‘conduct has been so significant and important a cause that [he or she] should be legally responsible.’ Inherent in any claim for direct liability under the Copyright Act, then, is a plaintiff’s need to prove the defendant was the direct cause of the injury. Put another way, to establish causation on a claim for direct liability, “defendants must actively engage in one of the activities recognized in the Copyright Act.”…

To hold a service provider liable in strict liability for the discrete acts of third party copyright infringers because the infringing material was stored on or passed through the service provider’s facilities would be, in effect, to hold the entire internet liable for the bad acts of a few.

I’ve added this passage to my Internet Law reader because I think it’s the most helpful statement of “volition”/”causation” I’ve seen to date, even though it’s still hardly clear. At minimum, it provides a doctrinal hook (however ambiguous) to channel copyright lawsuits against service providers away from direct infringement and into contributory or vicarious infringement.

Naturally, a USENET service provider lacks the requisite causation for USENET content–especially content that wasn’t originated by the USENET’s own subscribers. But I think this language could be read more broadly to apply to web hosting.

Regarding vicarious infringement, the court says Giganews lacks a direct financial benefit:

Perfect 10 must prove with competent evidence that at least some of Giganews’ customers were “drawn” to Giganews’ services, in part, to obtain access to infringing Perfect 10 material.

Thus, it’s not just whether the defendant makes money or even makes money from infringing works generally–the requirement is that the defendant make money from the plaintiff’s works. Check out how the court uses Perfect 10’s arguments against it:

Perfect 10’s evidence that the Usenet is awash in copyrighted material only supports the conclusion no reasonable juror could find a direct causal connection between infringing Perfect 10 content and Giganews’ profits. For example, if as Perfect 10 asserts, “staggering amounts of copyrighted works owned by move producers and television networks are available” on Giganews’ servers, what evidence is there that any Giganews subscriber purchased Giganews’ services in part because of the relatively miniscule [sic] number of Perfect 10 images available on Giganews’ servers? In short, there is none.

Giganews also defeats the contributory infringement claim. The court excoriates Perfect 10’s unnecessarily unhelpful methods of sending takedown notices. The court neatly summarizes:

Had Perfect 10 performed its own “investigative duties”, extracted the Message-IDs, and submitted those Message-IDs to Perfect 10 in a machine-readable format, there would be little left to discuss in this case.

I don’t think this case stands for the proposition that copyright owners must provide takedown notices to service providers in easy-to-process formats, but this court made it clear that it won’t tolerate what it perceived as deliberate sandbagging.

In retrospect, it seems obvious that a USENET service provider isn’t liable for copyright infringement in USENET absent proper 512(c)(3) takedown notices (which still makes my teeth gnash when I think about the ALS Scan v. Remarq case from 2001). While it’s super that the court reached the right result, the fact this litigation ran 3 years, and through 3 different district court judges, doesn’t inspire confidence about the state of current online copyright law to easily resolve easy cases.