Hot on the heels of the dismissal of its suit against Visa and MasterCard, pornographer Perfect 10 brings similar complaints against Google: direct and indirect copyright infringement, trademark infringement, dilution, circumvention, right of publicity, and the kitchen sink (ok, unfair competition).
What’s Perfect 10’s beef? Some third party sites (Does 1-100, denominated “Stolen Content Websites” in the complaint) are posting Perfect 10’s copyrighted images. But “because many of the Stolen Content Websites are judgment proof, it is economically and practically impossible to sue them for infringement of Perfect 10’s rights.” In other words, Google is a bigger, richer target for a lawsuit, so Perfect 10 claims it should be held responsible for the sites it links to, the images it indexes, and the keywords and site content of AdWords websites.
John Palfrey comments that the copyright complaints look like a loser in the wake of Kelly v. Arriba Soft (it’s fair use to take thumbnails for an image search database). Further, Chilling Effects has two DMCA takedown notices Perfect 10 sent Google earlier this year, and from the indications on Google search pages, it appears Google complied — which immunizes it from copyright liability for those alleged infringements.
Perfect 10’s complaint doesn’t look so strong, but its basic arguments are recurring ones in the online debates: that IP owners should be able to deputize intermediaries as their copyright, TM, etc. cops. (It’s no coincidence that Perfect 10’s lawyers include Russ Frackman, counsel to the record labels in MGM v. Grokster.) Sure, holding everyone in the chain liable might help stop infringements, but it would also kill search engines, whose value comes from helping users to find whatever they’re looking for, if it exists on the Web.
Search engines reflect the language their users actually write. To prevent them from showing it to us blinkers our view of the world in a manner alien to the “progress of science and useful arts.” Thankfully, we can count on Google counsel to defend our right to search.