Perfect 10's Latest Bizarre Arguments Against Google Heard By Skeptical Appeals Court

from the out-of-their-league dept

Wed, Apr 13th 2011 7:11am — Mike Masnick

Perfect 10 may be the gift that keeps on giving in filing really ridiculously bad lawsuits that make it damn easy for judges to set smart precedents. The "porn company" that some accuse of not really being a porn company at all, but rather a "copyright troll" who seeks to spread its images far and wide online for the sake of filing lawsuits, has repeatedly sued various search engines and others claiming infringement, and almost always lost. Part of one of its recent losses in a case against Google happened because it did not file actual DMCA notices, but rather sent a spreadsheet of top level URLs (not specific URLs) and a hard drive or DVD containing photos that it claimed were being infringed upon. In response, Perfect 10 is trying to claim that Google forwarding its "DMCA notices" to ChillingEffects itself represented infringement.

The 9th Circuit Appeals court recently heard the appeal on this ruling, which you can listen to below, and to say the judges were skeptical of Perfect 10's argument would be a supreme understatement. It's really worth a listen to hear just how annoyed the judges are with Perfect 10's lawyer, and just how out of his league the lawyer sounds. Using SoundCloud, I've highlighted a few of the key points of annoyance by the judges.

My favorite part may be around 8 minutes and 15 seconds in, right after Perfect 10's lawyer complains that even if their DMCA notices were deficient, it's still Google's fault for not explaining to Perfect 10 how to file compliant notices. Judge Kozinski jumps in immediately and questions this:

Kozinski: I'm sorry, where is this requirement that they educate you in how to be compliant with the law? Either the notice is lawfully compliant, or it's not lawfully compliant. If it is, then you don't need to change anything. And if it's not, I don't see where there's a requirement that they teach you how to make it compliant.

David Schultz (lawyer for Perfect 10): Well I believe that there's certainly a requirement to work together to try to make the least possible burden. There's a whole discussion on what's is or isn't burdensome here...

Kozinski: It may be a good idea, or it may not, but where is the requirement?

Eventually, all the way at the end of the hearing, a different lawyer for Perfect 10 claims that the requirement is in section 512(c)3(b)(i). You can check out that section of the DMCA if you'd like, and perhaps help us all out in figuring out where in there it says that if you file a faulty DMCA notice, the recipient has to tell the you how to properly file a compliant notice. I don't see it. In fact, my quick reading suggests it says the opposite, in that it says the service provider is not liable for having actual knowledge if it receives a faulty DMCA notice... but it's entirely possible I'm reading that wrong. Copyright lawyers? Want to chime in...?

Perfect 10, somewhat ridiculously, also claims that even if its DMCA notices were faulty, because there were tools out there that Google could have used -- including image recognition technology, or just "reviewing the images it finds" -- this makes Google liable. Of course, we already have multiple case law rulings that make it clear that the DMCA requires no such proactive techniques.

There's also an amusing exchange starting around the 10 minute mark, where Perfect 10 tries to claim that Google has -- incontrovertibly -- caused $20 million in damages to Perfect 10. The lawyer keeps arguing that it's "obvious" that this is true, based on a statement from Perfect 10's own CEO. One of the judges asks if there's any proof that any single customer used to purchase from Perfect 10, but then switched to Google, and the lawyer says no, but it's obvious that it must have happened.

The discussion about forwarding to ChillingEffects is also amusing. Judge Kozinski asks Schultz to explain how ChillingEffects works and what Google is doing and then -- for the second time in the hearing -- chides Schultz for not being able to answer a simple "yes" to a question, before digging in:

Kozinski, cutting off Schultz: Have you ever heard of the word 'yes'?

Schultz: Yes.

Kozinski: I don't want a whole story. So the things they are sending are entirely within your control? I mean, you could distort the images, you could put a disclaimer on them, you could put yellow polka dots, anything like that, right?

Schultz: The problem your honor...

Kozinski: Yes?

Schultz: Yes.

Kozinksi: Okay. So what's the beef then? If you know that they're going to send them to ChillingEffects, and you have it entirely within your power, or your client's power, to distort the images, to avoid them being used the way you did here, what's your complaint?

There's a lot more like that; those are just a few examples.

As for the other side of the case, the judges are also tough with Google's lawyer. At one point Judge Sandra Ikuta talks about "common sense" solutions, saying that Google knows there's infringement and why can't it just use its own search tools to find and block the infringing works. Google's lawyer points out that Perfect 10 completely exaggerated on the power of its image recognition tools, and that there's a difference between "image recognition" and "license recognition." Still, it's troubling that the judge is even asking this in the first place, as there is no proactive requirement for Google to go above and beyond the DMCA, and yet that appears to be what she's asking.

Judge Ikuta also asks an odd question of Google, later on, questioning why Perfect 10 can't put a special "alias" on its images that Google would recognize and then block any image with that alias -- and then deal with the counternotices if it takes down too much. However, you would think that this is a clear case of prior restraint. The government should never support a system that is "block first and ask questions later," so it seems like a strange question to ask.

While the judges do appear to be tough on both sides, it seems like they're a lot more skeptical of Perfect 10's reasoning. While Judge Ikuta asked some odd questions, I can't see those questions really impacting the ruling.

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Filed Under: chilling effects, copyright, dmca, infringement
Companies: google, perfect 10

27 Comments

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Anonymous Coward, 13 Apr 2011 @ 7:29am

Uhmmm... You wouldn't by chance have a link to those images would you? ...
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Anonymous Coward, 13 Apr 2011 @ 7:30am

Re:
Just google it.
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Dark Helmet (profile), 13 Apr 2011 @ 7:32am

Re:
"Uhmmm... You wouldn't by chance have a link to those images would you? ..."

....you're an Indonesian politician, arent' you?
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E. Zachary Knight (profile), 13 Apr 2011 @ 7:40am

Perfect 10?
I give their lawyers a 3.5
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Capitalist Lion Tamer (profile), 13 Apr 2011 @ 7:40am

A spreadsheet and a DVD?
Procedure for a DMCA involves just sending random objects found in the office? It's like some sort of ass-backward scavenger hunt. They didn't have anyone with the skills to at least "put it in Adobe?"

(Obviously not, if they couldn't figure out how to watermark their documents. Of course, it's tough to watermark a physical DVD. Sharpie doesn't count.)
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E. Zachary Knight (profile), 13 Apr 2011 @ 7:43am

512(c)3(b)(i)
Eventually, all the way at the end of the hearing, a different lawyer for Perfect 10 claims that the requirement is in section 512(c)3(b)(i).

Yeah, I don't see it. What I get out of that section is that the recipient of a faulty DMCA notice can safely ignore it. Meaning, Google cannot be punished for Perfect 10 not following the law.
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PrometheeFeu (profile), 13 Apr 2011 @ 7:54am

I love the google statement about image recognition != license recognition.
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coldbrew, 13 Apr 2011 @ 7:57am

Listening to this douchebag, P10 lawyer confirms my belief that we need to kill all the lawyers. Holy fucking shit.
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Dark Helmet (profile), 13 Apr 2011 @ 7:59am

Re: 512(c)3(b)(i)
This is what makes America a very, VERY special place. Two lawyers can look at the color green. One will say it's red, the other will say it's blue, and they'll argue about it until we kill them....
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Anonymous Coward, 13 Apr 2011 @ 8:09am

Re:
Don't kill all the lawyers...

You'll need one to defend yourself against the charge that you're committing a crime and not contributing to the rest of humanity by killing them...

:-)
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Berenerd (profile), 13 Apr 2011 @ 8:10am

Hehe...
There was a part that he stated that "We were unable to sell the images because they were openly available on perfect 10's systems..." he then later corrected himself and said google...but I got a good chuckle out of that.
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Lesath (profile), 13 Apr 2011 @ 8:13am

It's almost like these companies are trying to find ridiculous things to sue over just to get the case law established. Surely they don't really believe all this nonsense do they?
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Chris Rhodes (profile), 13 Apr 2011 @ 8:24am

Re: Re:
Defend yourself against who? Where are you going to find a judge afterwards? =P
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Chuck Norris' Enemy (deceased) (profile), 13 Apr 2011 @ 8:29am

Re: Re: 512(c)3(b)(i)
Because as long as they argue they get paid.
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The eejit (profile), 13 Apr 2011 @ 8:39am

Re: Re:
But...but...TERRORISM!

...waitaminute!
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Andrew F (profile), 13 Apr 2011 @ 8:46am

512(c)3(B)(i)
512(c)3(B)(i) refers to 512(c)3(B)(ii), which says that if an improperly filed notice contains, among other things, "information reasonably sufficient to permit the service provider to locate the material," then Google should "promptly attempt[] to contact the person making the notification or takes other reasonable steps to assist in the receipt of notification that substantially complies . . . ."

So that's what they're talking about in the audio. Assuming Perfect 10 provided "reasonably sufficient" information to identify the images (and I'm not saying they did, but assuming they did), then the question is what reasonable steps Google should take to help Perfect 10 file a proper DMCA notice.

I suspect that so long as Google sent an e-mail with a link to http://www.google.com/support/bin/static.py?page=ts.cs&ts=1114905, that's reasonable enough.
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FUDbuster (profile), 13 Apr 2011 @ 9:24am

Re: 512(c)3(B)(i)
Well done. Thanks.
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Any Mouse (profile), 13 Apr 2011 @ 9:31am

Re: 512(c)3(B)(i)
Since they didn't send Google any specific links, just top level domains, there really wasn't sufficient notice. From my understanding, their notices did not 'substantially compl[y] with all the provisions of subparagraph (A).'
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Chosen Reject (profile), 13 Apr 2011 @ 9:41am

Re: 512(c)3(B)(i)
The relevant text of 512(c)3(B)(ii) is
In a case in which the notification that is provided to the service provider�s designated agent fails to comply..., clause (i) of this subparagraph applies only if the service provider promptly attempts to contact the person making the notification....
Google simply need to tell Perfect 10 that its notices weren't compliant. At 7:44 in the audio the lawyer for Perfect 10 says "It could have gotten in touch with us if our notices were allegedly deficient and in fact Google claimed that each and every one of our notices was deficient and never bothered to explain to us what was a compliant notice." It sounds like Google followed 512(c)3(B)(ii) as well. They "attempt[ed] to contact the person making the notification". There isn't however, anywhere that I can see where they are required to say how to make it compliant. 512(c)3(B)(ii) goes on to say
"...or takes other reasonable steps to assist in the receipt of notification that substantially complies..."
First of all, that is preceded by an or clause, so contacting is sufficient. Second of all, that part only states they take steps to assist in the receipt of a compliant notice, not assist in the creation of a compliant notice. So, as long as Google contacted Perfect 10 (and by the lawyer's own admission it sounds like they did) then Google was fully compliant with the DMCA.
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FUDbuster (profile), 13 Apr 2011 @ 9:49am

This is great reporting, Mike. I just downloaded the mp3 to give it a listen.
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Ryan (profile), 13 Apr 2011 @ 10:27am

Trial By Axe
Yes, because Trial by Axe was a WAY better system :)
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Rikuo (profile), 13 Apr 2011 @ 10:41am

Who the hell, upon receipt of a faulty lawsuit document, would think they are obliged to HELP the guys trying to sue you? It boggles the mind as to how Imperfect 10 think that Google should teach their lawyers how to do their job properly.
NEWSFLASH! If your lawyers send a faulty DMCA notice, get your money back and hire someone competent next time!
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Anonymous Coward, 13 Apr 2011 @ 11:31am

Re: Re:
Once all the lawyers were gone it would be self-evident to everyone left that it was a contribution to the rest of humanity.
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The eejit (profile), 13 Apr 2011 @ 12:54pm

Re:
You know, I now have the mental image of the Perfect 10 team being like Ted Buckland from Scrubs.

That image makes it more hilarious.
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The Libertarian, 13 Apr 2011 @ 2:16pm

Re:
I think i just died a little bit inside from the shock.
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FUDbuster (profile), 14 Apr 2011 @ 6:25am

Re: Re:
Did you listen to the audio? Google's lawyer did an amazing job. Very impressed.
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Christopher (profile), 16 Apr 2011 @ 12:37pm

Re: Re: Re:
No, it wouldn't. The fact is that everyone spouts the bullshit about "KILL THE LAWYERS!" until they are charged with a crime and need a lawyer.

Then, after having some REAL CONTACT WITH LAWYERS, they realize that not all lawyers are like these idiots who are working for Perfect 10 and stop spouting that bullcrap.
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