Perfect 10 v. Google on Remand, and 230 as an Affirmative Defense

By Eric Goldman

Perfect 10, Inc. v. Google, Inc., 2008 WL 4217837 (C.D. Cal. July 16, 2008)

You recall this case involving Perfect 10’s allegations that Google and Amazon (and, in a subsequent complaint, Microsoft) are infringing its rights by indexing third party posts of Perfect 10’s photos. You may also recall the 9th Circuit issued an important but confusing ruling in this case in May 2007, which the 9th circuit corrected in an amended opinion in December 2007. The 9th Circuit rulings sent the case back to the district court for further proceedings, and this opinion (which just came through Westlaw–not sure why it took so long) is part of those proceedings.

Perfect 10 sought to file a second amended complaint making new factual allegations, including extending the lawsuit to include Google’s Blogger service and claiming nearly a thousand new infringed copyrights, and pleading new causes of action, including California and common law unfair competition, unjust enrichment, and misappropriation. Google tries to knock out the amendment on a variety of grounds, but all of Google’s arguments fail, and the court lets Perfect 10’s second amended complaint through.

I was most interested in Google’s attempt to knock out the unfair competition, unjust enrichment and misappropriation claims as moot due to 47 USC 230. The court rejects the argument because it says that 230 is an affirmative defense that does not support a 12(b)(6) motion. I remain surprised that this meme has taken root so deeply, because my guess is that well over 50% of the 230 defense wins have been in a 12(b)(6) motion or its state law equivalent, like a demurrer. (The percentage is reduced by cases where the defendant didn’t try for 12(b)(6) and instead raised the 230 motion in the first instance in summary judgment). In other words, the vast weight of caselaw supports that 230 can be used for a 12(b)(6) dismissal, so this court’s breezy refusal to do so is disappointing.

Perfect 10 also argued that Google is the content creator of the tortious content. I wonder how Perfect 10 will factually support that assertion, but it also was enough for the court to reject the 12(b)(6):

The question whether any of Google’s conduct disqualifies it for immunity under the CDA will undoubtedly be fact-intensive. Neither party has proffered evidence sufficient for the Court to determine at this stage whether Google is entitled to CDA immunity. Although it is highly likely that P10 will encounter difficulty in establishing that Google engaged in the “creation or development in whole or in part” of unlawful content, see Fair Housing Council, 521 F.3d at 1168-69, it would be improper for the Court to resolve this issue on the pleadings and the limited evidentiary record before it.

Also interesting is that the court lets Perfect 10 add 650+ new infringed copyrights that were unregistered at the time of filing the complaint. In my opinion, 17 USC 411(a) is fairly clear (as statutory language goes) that copyright plaintiffs can sue only on registered (or pre-registered) copyrights, which should make this an easy dismissal. However, some courts have found the statutory language ambiguous and thus have allowed plaintiffs to proceed on copyright applications while they are pending with the Copyright Office–and this court does so as well.