Perfect 10 Claiming That Passing Along Its DMCA Notices Is, Itself, Infringing

from the shaping-case-law-day-by-day dept

Thu, Dec 23rd 2010 1:14pm — Mike Masnick

Perfect 10 is a company that, for a brief period of time, apparently published a rather expensive porn magazine. Since then, it seems to have served a single purpose: to file ridiculous copyright lawsuits that it almost always loses, but which have helped to define case law concerning copyright issues. Various Perfect 10 decisions are frequently cited in copyright lawsuits -- for example, its multiple losses concerning claims that search engines showing thumbnails infringe on copyrights. Earlier this year, Rapidshare filed a very entertaining countersuit against Perfect 10, which goes into great detail suggesting that the company serves little purpose other than being something of a copyright troll. In fact, it seems to go out of its way to not use tools provided to take down infringing content, and to alert internet service providers of potential infringement in ways that are almost impossible for them to do anything about. For example, it's famous for filing deficient DMCA notices that do not properly indicate where the specific content is located.

The "company" (and I say that loosely) is apparently back in court with Google yet again, this time arguing that passing on its DMCA takedown notices to sites like ChillingEffects.org is also copyright infringement. Yes, it's saying that publishing a DMCA notice can constitute infringement. ChillingEffects, of course, is the enormously helpful website that acts as a repository for DMCA takedown notices. It serves as an amazingly useful tool. Perfect10's argument is that it includes its images in the DMCA notices, so publishing them via ChillingEffects is infringement. It seems to stretch any level of believability to think that a DMCA notice which Perfect10 itself filed is acting as a reasonble replacement for the content contained within. Besides, I'm pretty sure that there is no reason for Perfect 10 to include the actual images -- it could just send URLs. It seems like the only reason to include the actual images is to be able to make a bogus copyright claim at a later date, which is exactly what happened.

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Filed Under: copyright, dmca notices
Companies: google, perfect 10

18 Comments

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Anonymous Coward, 23 Dec 2010 @ 1:32pm

Isn't there a rule that, unless sealed, legal documents can be freely reproduced? I recall that this loophole was used by at least the Fishman Affidavit and by RECAP.
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interval (profile), 23 Dec 2010 @ 1:44pm

Special Purpose
Well, at least they're serving some kind of useful purpose.
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Anonymous Coward, 23 Dec 2010 @ 1:49pm

Actually, they may be right. They are private documents. It might be a violation of some sort (but maybe not copyright) to allow a third party to publish them.
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JH, 23 Dec 2010 @ 2:00pm

Free Pr0n
Well I was going to sign up for a Perfect 10 account and fork over big $$, but since I can sift through DMCA takedown notices and get the same content for free I'll just do that!
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Rose M. Welch (profile), 23 Dec 2010 @ 2:20pm

Re:
How are they 'private documents' if they were posted with the consent of the recipient of the documents? Also, where does the law guarantee you the right to privacy in regards to documents that you send to other people?
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Rose M. Welch (profile), 23 Dec 2010 @ 2:23pm

Re:
How are they 'private documents' if they were posted with the consent of the recipient of the documents? Also, where does the law guarantee you the right to privacy in regards to documents that you send to other people?
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Josh in CharlotteNC (profile), 23 Dec 2010 @ 2:32pm

Re: Free Pr0n
I have it on good authority (heh) that there are easier ways to get better porn on the internet for free.

Imagine that.
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Anonymous Coward, 23 Dec 2010 @ 2:43pm

Re: Re:
I would answer you twice, but hey. Once is enough.

I am not a lawyer, I don't have an answer. I just have a problem where any and all documents can be shuffled off to a third party and publicly posted. I wonder if Google does this with all of their business correspondence.
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Anonymous Coward, 23 Dec 2010 @ 2:46pm

Hold on I'm looking at some *hot* DMCA takedown notices right now...
oh yeah, baby! i love the way you take that content down.
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average_joe (profile), 23 Dec 2010 @ 4:43pm

It's strange that Perfect 10 includes a copy of the allegedly infringed work in their takedown notices in the first place, since the DMCA does not require it. If they're so worried about their IP, why would they include high-res copies unless they had to?

Regardless of that, I think Google's passing along the images to Chilling Effects is prima facie infringement. However, given Chilling Effect's transformative use of the material for scholarly research, I think it's fair use.
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Anonymous Coward, 23 Dec 2010 @ 4:44pm

Re: Re: Re:
I am a lawyer, and Rose has it right on point. Unless you have a prior agreement (or there is a defacto agreement derived from the relationship, e.g., lawyers, doctors, etc.) with another party restraining communication and sharing of discourse, there is no expectation of privacy. The simple fact of sharing information with a third party means the individual has waived any expectation of privacy.
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average_joe (profile), 23 Dec 2010 @ 4:53pm

Re: Re: Re: Re:
I agree about the expectation of privacy aspect. It still seems to be copyright infringement for Google to forward the images, though. Unless, of course, it's fair use--which I think it is.
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Rose M. Welch (profile), 23 Dec 2010 @ 5:10pm

Re: Re: Re:
Hehe, I guess I hit submit twice, but read what the guy below me has to say. He's spot on. :)
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Mike Masnick (profile), 23 Dec 2010 @ 5:30pm

Re:
It's strange that Perfect 10 includes a copy of the allegedly infringed work in their takedown notices in the first place, since the DMCA does not require it. If they're so worried about their IP, why would they include high-res copies unless they had to?

Go read the RapidShare lawsuit. It makes it pretty clear that Perfect 10 is not at all *worried* about infringement -- they *want* infringement so they can sue.
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average_joe (profile), 23 Dec 2010 @ 5:49pm

Re: Re:
I certainly considered that possibility. Maybe so.
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Anonymous Coward, 24 Dec 2010 @ 11:27am

You mean I can spend hours looking for a random take down notice that might have a few images that may or may not be of sufficient quality. So that I can get my porn fix. Glad they complained about it (Streisand effect).
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zmktwzrd (profile), 25 Dec 2010 @ 3:07pm

Perfect 10's point is legit...
I have also had problems with Chilling Effects and understand Perfect 10�s point. Let me use an analogy. Let�s assume you had something you did not want freely distributed (your medical records or credit card numbers). Furthermore, a site was offering these for free and you could find them via Google. You therefore send a notice to Google to have them remove the link to the infringing information. They in turn remove the information (like they are supposed to) HOWEVER, Google simply gives the information to Chilling Effects who simply takes the same infringing URLS and posts them. What happens is that you have achieved nothing, the relief you get from Google taking them down is completely offset but Chilling Effects putting them right back up!

People need to understand that Chilling Effects is there to threaten you! The message is �don�t you dare tell Google to take something down because we will put it right back up AND draw attention to it!�

Overall I love Google and the freedom of the Internet, but Norm Zada is right on this Chilling Effects thing. If you don�t agree just wait until it is YOU who is in desperate need of having something removed (legally) from the Internet and Chilling Effects laughs in your face and says �just for that we are going to double publish the information!�

There needs to be a way that when the law says �take it down� it ACTUALLY COMES DOWN!
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Mike Masnick (profile), 25 Dec 2010 @ 9:34pm

Re: Perfect 10's point is legit...
There needs to be a way that when the law says �take it down� it ACTUALLY COMES DOWN!

There is (for copyright). It's called the DMCA, and you send it to the source of the material and they take it down.

The problem with sending stuff to Google is that Google just links to other sources. Send it to the source.
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