November 21, 2004

Perfect 10 Takes Aim At Google

Filed under: open — Wendy @ 10:00 pm

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.

9 Comments

  1. Perfect 10 Sues Google

    Last we heard from Perfect 10, the porn purveyer failed miserably in its Induce Act-like attempt to hold credit card companies liable when people use the cards to purchase access to purloined Perfect 10 pics. Andrew Bridges, a partner in…

    Trackback by Copyfight — November 22, 2004 @ 1:13 pm

  2. The law is that ISPs–not search engines–can be held responsible for not taking down “infringing” material once they are warned.

    Far as I know, search engines have no such burden–unless, and I’m guessing here, they accept paid advertisement from an infringer’s site. And after they’ve been warned. That would seem a reasonable extrapolation of the ISP-liability situation.

    But making them liable for just indexing billions of webpages and then returning, as Wendy writes, the results requested.

    This is nothing more than a money grab. The goals, imho, were two: all the free advertising for the perfect10.com site (and if those girls are “natural”, I must’ve missed the part of biology that allows women to grow silicon in their breasts without the annoying five figure surgical fees).

    Second, I assume they were looking for nuisance value–mostly likely in the form of stock options or grants, I’d guess.

    Prediction: this’ll be dismissed faster than it takes for one of their “natural” models to grow two cup sizes in the operating room.

    And it should be! Otherwise, such a precedent will be used by companies as a form of SLAPP suit, only for buisness. Companies getting criticized by sites like, e.g. walmartsucks.net, will simply threaten to sue and undercapitalized news media will simply refuse to cover anything which could be annoying to a corporation. And even wealthy companies like Yahoo will make sure nothing offensive to anyone with enough money to hire shysters is posted anywhere on their site or in the search results–just to avoid the hassle. This has to be stopped.

    Something similar to this has happened many times. Before Yahoo and others got smart, they’d turn over the id of any poster criticizing a company just on request. People who were employees suddenly found themselves being fired and/or sued for simply expressing their opinion. Fortunately, Yahoo, et al, quit simply bending over and got a little backbone.

    It’s really a backdoor attempt to muzzle and, ultimately, waterdown free expression in cyberspace until the only thing legal will be posting pics of your family picnicks on your yahoo page.

    Comment by Newsjunkie356 — November 30, 2004 @ 3:42 am

  3. The law is that ISPs–not search engines–can be held responsible for not taking down “infringing” material once they are warned.

    Far as I know, search engines have no such burden–unless, and I’m guessing here, they accept paid advertisement from an infringer’s site. And after they’ve been warned. That would seem a reasonable extrapolation of the ISP-liability situation.

    But making them liable for just indexing billions of webpages and then returning, as Wendy writes, the results requested.

    This is nothing more than a money grab. The goals, imho, were two: all the free advertising for the perfect10.com site (and if those girls are “natural”, I must’ve missed the part of biology that allows women to grow silicon in their breasts without the annoying five figure surgical fees).

    Second, I assume they were looking for nuisance value–mostly likely in the form of stock options or grants, I’d guess.

    Prediction: this’ll be dismissed faster than it takes for one of their “natural” models to grow two cup sizes in the operating room.

    And it should be! Otherwise, such a precedent will be used by companies as a form of SLAPP suit, only for buisness. Companies getting criticized by sites like, e.g. walmartsucks.net, will simply threaten to sue and undercapitalized news media will simply refuse to cover anything which could be annoying to a corporation. And even wealthy companies like Yahoo will make sure nothing offensive to anyone with enough money to hire shysters is posted anywhere on their site or in the search results–just to avoid the hassle. This has to be stopped.

    Something similar to this has happened many times. Before Yahoo and others got smart, they’d turn over the id of any poster criticizing a company just on request. People who were employees suddenly found themselves being fired and/or sued for simply expressing their opinion. Fortunately, Yahoo, et al, quit simply bending over and got a little backbone.

    It’s really a backdoor attempt to muzzle and, ultimately, waterdown free expression in cyberspace until the only thing legal will be posting pics of your family picnicks on your yahoo page.

    Comment by Newsjunkie356 — November 30, 2004 @ 3:43 am

  4. The law is that ISPs–not search engines–can be held responsible for not taking down “infringing” material once they are warned.

    As far as I know, search engines have no such burden–unless, and I’m guessing here, they accept paid advertisement from an infringer’s site. And after they’ve been warned. That would seem a reasonable extrapolation of the ISP-liability situation.

    But making them liable for just indexing billions of webpages and then returning, as Wendy writes, the results requested.

    This is nothing more than a money grab. The goals, imho, were two: all the free advertising for the perfect10.com site (and if those girls are “natural”, I must’ve missed the part of biology that allows women to grow silicon in their breasts without the annoying five figure surgical fees).

    Second, I assume they were looking for nuisance value–mostly likely in the form of stock options or grants, I’d guess.

    Prediction: this’ll be dismissed faster than it takes for one of their “natural” models to grow two cup sizes in the operating room.

    And it should be! Otherwise, such a precedent will be used by companies as a form of SLAPP suit, only for buisness. Companies getting criticized by sites like, e.g. walmartsucks.net, will simply threaten to sue and undercapitalized news media will simply refuse to cover anything which could be annoying to a corporation. And even wealthy companies like Yahoo will make sure nothing offensive to anyone with enough money to hire shysters is posted anywhere on their site or in the search results–just to avoid the hassle. This has to be stopped.

    Something similar to this has happened many times. Before Yahoo and others got smart, they’d turn over the id of any poster criticizing a company just on request. People who were employees suddenly found themselves being fired and/or sued for simply expressing their opinion. Fortunately, Yahoo, et al, quit simply bending over and got a little backbone.

    It’s really a backdoor attempt to muzzle and, ultimately, waterdown free expression in cyberspace until the only thing legal will be posting pics of your family picnicks on your yahoo page.

    Comment by Newsjunkie356 — November 30, 2004 @ 3:44 am

  5. Wendy,

    Didn’t mean to post three times. I was editing my post, then hitting “post” but nothing was happening.

    Sorry!

    Comment by Newsjunkie356 — November 30, 2004 @ 3:46 am

  6. I’m not sure how I feel about Google. (Don’t tell Alex I said that! :-) ) Certain aspects of their functionality are really quite disturbing.

    Caching is probably the most worrisome. Copyright issues aside, how about libel?

    Here’s a true story. I personally have been the target of an insane cyber-stalker. One of those net.kooks was associated in an unsavory way with a woman I briefly dated, which resulted in my name being added to his insane usenet ramblings. Most of them were quite horrible. He called me at least a drug abuser, a child molester (!!! he also levied that accusation against his ex-wife, several state agencies, doctors…), a mental patient and impotent. If he weren’t judgment-proof…

    Now, obviously, nobody’s gonna believe this known net.kook. Nonetheless, I could just see some state bar searching for my name and coming up with this stuff, and I’d have an unpleasant explanation to give. So every once in a while, I find this nutter’s libels reposted on some usenet-archiving website. I send the proprietor a polite, utterly non-threatening, e-mail explaining the situation and asking them to take it down. Invariably, they do. Because, really, they don’t want to be responsible for that kind of garbage.

    Well, search for “Paul Gowder impotent” on google. (No quotes.) It links a bunch of pages — and excerpts the lies. The linked pages have been taken down. But at least two of them have been “cached.”

    Now how am I to get rid of THAT republication of a libel? Google (present counsel excepted) isn’t terribly responsive to polite “please look at what you’re caching” e-mails. Should someone in my position have to suffer this republication of grossly libelous comments?

    It seems the only way to rid onesself of such a thing would be to break out the C&D letters. Now obviously, I don’t intend to do so. I’ve got better things to do.

    But is this right? Imagine someone who is in a more vulnerable position, with a more credible and recent accuser. Imagine someone who succeeds in utterly rending the credibility of their attacker so no publisher, even an ISP, will touch them with a twenty thousand foot pole. Must they still suffer the slings and arrows of an unaccountable Google?

    (As you can tell, I’ve been reading though old blogs lately — mainly in aid of fodder for my own blog — shameless plug! — http://www.paultopia.org/blog/ )

    -Paul

    Comment by Paul Gowder — December 7, 2004 @ 7:31 pm

  7. Hello folks nice blog youre running

    Comment by lolita — January 19, 2005 @ 5:11 pm

  8. I love that this post got porn spam.

    Comment by nate — March 3, 2005 @ 9:33 pm

  9. Google Wins Some, Loses Some, in First Round Order (Feb. 21, 06): http://wendy.seltzer.org/blog/archives/2006/02/22/google_wins_some_loses_some_in_first_round_versus_perfect_10.html

    Comment by Wendy Seltzer — February 22, 2006 @ 1:26 pm

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