Perfect 10 Loses Again, As Court Says DMCA Notices Need To Be Properly Filed

from the red-flags? dept

Thu, Jul 29th 2010 7:31am — Mike Masnick

Just last week we were talking about Perfect 10's lawsuit against Google in Canada, where we noted that in Perfect 10's own bragging press release, it effectively admits that its takedown filings were not properly filed. They admit that they just sent images to Google saying that it owned the images, without telling Google where they were actually located to take down. This was the same charge that Rapidshare recently made against Perfect 10, noting that the company seemed to purposely not want companies to take down their images, so that it could sue.

Thankfully, in the US version of the lawsuit (in which Perfect 10 seems to lose over and over and over again), the judge noted this failure by Perfect 10 to properly file DMCA takedown notices and dismissed large parts of the lawsuit. Similar to what Perfect 10 bragged about and what Rapidshare claimed, it appears that Perfect 10's "notices" were hardly informative. It also seems to have gone out of its way to make it difficult for Google to quickly respond -- including sending the notices to the wrong email address. As EFF notes:

For example, many of its "notices" consisted of a cover letter, a spreadsheet with URLs (many of which linked only to a top-level URL for a website, as opposed to a specific infringing URL) and a hard drive or DVD containing Perfect 10's electronic files of its photos. Not good enough, said the court -- the information required by the DMCA must be contained in a single written communication; forcing a service provider to cobble together adequate notice from a variety of sources is just too burdensome.

While this is entertaining in that it's the latest in a long line of legal smackdowns against Perfect 10 and its questionable litigation strategy, this ruling could be important in a variety of other cases as well. One of the key issues being fought about in a series of cases is what constitutes "knowledge" for a service provider, requiring it to take action under the DMCA. In both the Veoh/Universal Music case and the YouTube/Viacom case, judges found that the knowledge had to come from specific DMCA takedown notices, that indicated where the specific infringing works were. However, in the IsoHunt case, a judge went in a different direction, claiming that "red flag" knowledge was enough. That is, if there was enough information out there to raise a "red flag," then the service provider needed to take action.

Now, we've long argued that such "red flag" knowledge is somewhat meaningless. If I know that lots of people are using a tool for infringement, but don't know which specific works are infringing, how can I be expected to do anything specific? Since there's no way for the service provider to pinpoint which works are infringing -- even if they know that many works likely are infringing -- then how can the service providers act in a way that doesn't create massive collateral damage for legitimate communication?

But this ruling, again, effectively is a vote against the concept of "red flag knowledge," since you could make the argument (and, Perfect 10 did) that even in the absence of a complying DMCA takedown notice, sending over its mess of information could constitute a red flag. But, as the judge properly notes, that makes little sense. The ruling goes through the ridiculous hoops that Google would need to jump through in order to find and take down specific works, and notes that the DMCA clearly did not intend for that to happen.

Of course, this isn't the first time that Perfect 10 has lost on this exact argument. The CCbill case involved more or less the same questions about "red flag" knowledge, and Perfect 10 lost there. This ruling relies heavily on that one. But, we seem to keep racking up rulings that say that any "red flag" knowledge still requires specific notification of what is infringing -- with the IsoHunt ruling being the one exception. It makes you wonder if the IsoHunt ruling is on a collision course with all of these others.

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Filed Under: dmca, red flags
Companies: google, perfect 10

24 Comments

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Anonymous Coward, 29 Jul 2010 @ 7:47am

What it makes me wonder is if ISOHunt can come back and appeal based on these other, more recent rulings.
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jilocasin (profile), 29 Jul 2010 @ 7:54am

An RIAA's lawyers thoughts on 'red flag knowledge'
I came across this article highlighted on Groklaw's home page:

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202463839409&iViacom_v_YouTubei_a_miss ed_opportunity&slreturn=1&hbxlogin=1

Basically, this attorney believes that the courts are ruling against Congress' intentions and disregarding the entire purpose of the 'red flag' provisions of the DMCA.

Not that I agree, but I thought it provided a better counterpoint than Perfect 10's admittedly deficient filings.
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Hephaestus (profile), 29 Jul 2010 @ 7:58am

Re:
I was wondering the same thing. It also seems to suggest that most torrent trackers if they respond to DMCA takedowns should be legal. With the exception of The PirateBay whose blatant mocking of requests to remove torrents from their tracker would violate the DMCA if they were based in the US.
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ofb2632 (profile), 29 Jul 2010 @ 8:12am

What makes it harder for the 'red flag' is that there are companies that are payed by the movie industry to put out fake movies with the real names. so if someone downloads one of those movies, are they infringing copyrights? and if not, how are we, the public, supposed to know what movies are copyrighted and what ones are posted by those companies?

Maybe i just want to see what the movie industry is submitting to bit torrent.
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Anonymous Coward, 29 Jul 2010 @ 8:23am

If when it gets to a perfect 10 fails in court for Perfect 10 would that be irony?
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Eponymous, 29 Jul 2010 @ 8:28am

Re: Re:
The reason TPB largely mocks the takedowns is they're a Swedish entity being told to comply with US law via a US DMCA notice. I probably laugh too if I got a message saying I was in violation of some foreign law.

They also thought that Swedish law did not have 3rd party liability and similar, but apparantly are wrong on that one.
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abc gum, 29 Jul 2010 @ 8:36am

I'm guessing that perfect 10 takes issue with Google Image Search display of thumbnails which represent larger pics found on the net.

Does perfect 10 go after these sites which actually host the pics?
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Hephaestus (profile), 29 Jul 2010 @ 8:52am

Re: An RIAA's lawyers thoughts on 'red flag knowledge'
"Basically, this attorney believes that the courts are ruling against Congress' intentions and disregarding the entire purpose of the 'red flag' provisions of the DMCA."

§ 512(c)(1)(A), does not require awareness of specific infringing video clips. This provision merely requires awareness of "facts or circumstances from which infringing activity is apparent" ... this is refered to as "red flag" knowledge.

The key word in that statement is the word "APPARENT"

Viacom authorized the upload of its content and hid the fact by using outside IP addresses. Hiding officially released Viacom Video amoung infringing material. This takes every Viacom video on YouTube out of the red flag provision because they were purposely obfuscating (confusing) which were official and which were not.

Scott A. Zebraks statement

"By finding that red-flag knowledge requires proof equivalent to that of actual knowledge, the court rendered the red-flag provision meaningless and duplicative of the actual knowledge provision, a result Congress obviously could not have intended."

doesn't hold up, it was Viacoms act of uploading content and hiding the fact that renders the redflag provisions meaningless.
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Hephaestus (profile), 29 Jul 2010 @ 8:55am

Re: Re: Re:
"The reason TPB largely mocks the takedowns is they're a Swedish entity being told to comply with US law via a US DMCA notice."

Yeah I know, personally I would probably do the same if an EU court came after me with a site hosted in the US.
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Anonymous Coward, 29 Jul 2010 @ 8:57am

Re:
I would guess they only go after companies that hey think have $$$.

Browse through the take downs at http://www.chillingeffects.org

tons and tons of request to pull links found in search results.

Question: Why does a search engine get DMCA takedown notices for materials in its search listings?

Answer: Many copyright claimants are making complaints under the Digital Millennium Copyright Act, Section 512(d), a safe-harbor for providers of "information location tools." These safe harbors give providers immunity from liability for users' possible copyright infringement -- if they "expeditiously" remove material when they get complaints. Whether or not the provider would have been liable for infringement by users' materials it links to, the provider can avoid the possibility of a lawsuit for money damages by following the DMCA's takedown procedure when it gets a complaint. The person whose information was removed can file a counter-notification if he or she believes the complaint was erroneous.
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Hephaestus (profile), 29 Jul 2010 @ 9:02am

Re: Re: An RIAA's lawyers thoughts on 'red flag knowledge'
Finishing the Final line ...

"...renders the redflag provisions meaningless." The actions of Viacom made it so that "actual knowledge" of what was infringing material was required.
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scarr (profile), 29 Jul 2010 @ 9:49am

I find it amusing that Perfect 10 addressed their copyright infringement concern by sending a hard drive full of porn to Google.
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Anonymous Coward, 29 Jul 2010 @ 10:00am

Re: Re:
How are search engines to pull down content that does not reside on their servers? Your response to the previous question does not answer this.
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Almost Anonymous (profile), 29 Jul 2010 @ 10:35am

Re: Re: Re:
"""How are search engines to pull down content that does not reside on their servers?"""

A search engine cannot pull down content, of course, but they can "refuse" to list the result in their search returns. I gather this is what is being requested. This would effectively "take down" the content since nobody can basically guess at a random URL to view the disputed content.
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Almost Anonymous (profile), 29 Jul 2010 @ 10:36am

Re:
Yeah, how do you subscribe to THAT mailing list???
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abc gum, 29 Jul 2010 @ 11:40am

Re: Re: Re: Re:
Yep, and the copyright infringers walk while the tool used to find them gets takedown letters and law suits.

This all makes pefect sense in Bizarro World.
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BearGriz72 (profile), 29 Jul 2010 @ 2:13pm

Re: Re:
1) Start A Search Engine
2) Index Lots And Lots of Pr0n!
3) ???
4) Win!?
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Rather_Notsay (profile), 29 Jul 2010 @ 3:39pm

What's so hard?
I just don't understand what's so hard about filing a DMCA notice. If I was, say, in charge of copyright control for Warner Brothers, I would, every morning, go to Google, type in "Bugs Bunny" find all the posted videos of copyrighted Bugs Bunny cartoons, check to see that they really were infringing, paste the URL into a standard form letter, and email it off to the relevant site. Google would be my friend. They're doing all the hard work of finding all this infringing stuff for me, I just have to cut an paste. It wouldn't take someone of my skill to do this, I could get a low paid flunky to do it, it's that easy. Heck, I could get illegal aliens or people living in countries with extremely low pay levels to do it.

There's an expense involved in that, tis true, but if the sale of Bugs Bunny cartoons don't generate enough revenue to pay a flunky in Pakistan to search on Google for unauthorized copies, one wonders why the copyright is worth enforcing at all.
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indie filmmaker, 29 Jul 2010 @ 5:25pm

Irony abounds...
I find it ironic that the court said it was "burdensome" for those on the receiving end of the DMCA notices. Ask someone whose work has been extensively pirated (stolen) who doesn't have the deep pockets of a major studio and see just how "burdensome" it is to send thousands upon thousands of DMCA notifications.

It's not just a matter of finding a link via Google. It often requires drilling down through various pages and posts (and ads (thanks Google AdSense for that) before one can actually find the infringing material (stream and/or link(s)).

While we are on the subject of Google, let's ask them just what % of their AdSense revenue comes from (and is fed back to) the pirate websites. Google ads are everywhere on pages featuring pirated content. Out of 2.6 billion in AdSense profits last quarter alone, I imagine it's a fair amount of change. Google earns a pretty penny from piracy...not that they'll admit it any time soon.
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Anonymous Coward, 29 Jul 2010 @ 8:58pm

Re: Irony abounds...
Hint #1: If you need to spend your time filing "thousands and thousands" of DMCA notifications, perhaps you should instead spent that time not relying on a failed business model.

Hint #2: I bet a lot of computer manufacturers earn a large percentage of revenue from people using computers for criminal activity! Quick, sue! We must protect ourselves from...you know...the internet! Or something. After all, flailing around in self-pitying panic is much easier than actually improving your business, right?
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Anonymous Coward, 29 Jul 2010 @ 8:58pm

Re: Re: Irony abounds...
spend*
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JamRoll, 30 Jul 2010 @ 9:20am

Re: Fake Files Submitted by Movie Industry...
I am not a lawyer. I am just your average white, sub-urbanized slob who likes football, and porno, and books about war!

I think downloading a fake movie could be construed as an attempt to commit a crime - which ... is a crime, no? But, I see a whole other, perhaps damaging (to the industry) issue. If the movie company uploads a fake file with the name of a real movie, can we, the downloaders, then assume we have permission to download the actual movie named?? I think it would!

I mean, we download the fake, submitted by legit movie company (or agent(s))....we try to view it, and see it is "corrupt" - so download a different copy. Seems perfectly legal to me. Basically, by posting the fake, they hand us permission to download the real as the fake can be seen as simply corrupted data. Or, even if the movie downloaded is viewable, but different than what the torrent says, whatever the movie, the incorrect movie was legitimately uploaded - making that movie free for the taking.
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average_joe (profile), 30 Jul 2010 @ 10:00am

Re: An RIAA's lawyers thoughts on 'red flag knowledge'
Excellent link! Thanks!

I'm sure it's not a surprise to many, but I agree with the points being made in that opinion piece. I look forward to the appeals of the Viacom v. YouTube case. I think the district court judge botched it up, and I await the spanking that I think is coming from the appellate courts.

Like it or not, "red flag" knowledge is part of the DMCA.
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Yung H, 31 Jul 2010 @ 4:39pm

Bullshit.
If Google blocked certain images or links containing copyrighted material it would not be a search engine would it? I just hate how companies rather spend they're time in court instead of thinking of other ways to resolve this problem, like downing the prices of products down a bit. (Come on, really, games, movies... they are a bit pricey. For a newely released game, I could eat a week. hahahaha.)
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