Porn suit is reinvigorated by US appeals court
Penetrating legal analysis
Silicon Justice Perfect 10 makes porn. (We're sorry - "adult entertainment.")
The company also sues like a jackrabbit in order to protect its copyrights in said pornography.
These litigious purveyors of print and online smut, you may recall, recently won a landmark suit against Google in which they claimed that Google's thumbnail renditions of their images repeatedly violated their dirty pics copyrights.
The court in that case essentially found that Google's thumbnails did not fall under the exception for fair use, and granted an injunction prohibiting Google from displaying the thumbnail images for Perfect 10's pics in the future.
More recently, Perfect 10 sued a web hosting firm, CWIE, and a subscription gateway, CCBill, arguing that the two companies rapaciously molested Perfect 10's copyrights, trademarks and right of publicity by providing their services to porn sites that had misappropriated images from Perfect 10's publications.
The services countered the allegations in the suit by claiming that several provisions of the Digital Millenium Copyright Act (DMCA) and the Communications Decency Act acted as a prophylactic, rendering the companies impregnable against Perfect 10's claims.
Both statutes provide immunities and shields for providers of online interactive services.
Perfect 10 argued that the companies lost these protections by failing to implement the policies required by the DMCA in a reasonable fashion. The district court agreed with the service providers, though, and granted them protection under the two statutes. Perfect 10, the district court declared, had failed to erect a substantial case against the two companies, and ruled in favor of the service providers on most issues.
The 9th Circuit Court of Appeals, however, determined that the district court had brought the case to its climax prematurely, and sent it back to the lower court on several grounds. Amid a lot of fairly standard procedural reasons for kicking the case back to the lower court, the 9th Circuit decided to lay down a few legal decisions with some real importance for intellectual property and immunities on the Internet.
Perfect 10 argued before the court that CCBill shouldn't enjoy any service provider immunity since the company (allegedly) violated rules prohibiting interference with content identification and protection methods.
CCBill had blocked Perfect 10's credit card numbers when the company tried to buy subscriptions to the allegedly infringing porn sites, ostensibly because Perfect 10 kept canceling its subscriptions and reversing charges. This, CCBill argued, ran up costs and was a general pain in the ass.
Perfect 10 claimed that CCBill's refusal to grant them subscriptions constituted a block of a standard technical measure (STM) that they were using to determine the presence of infringing material. (Yes, they actually argued that looking at porn online was a standard technical measure for protecting their rights. Gotta love copyright law!) If a service provider blocks the use of a content-owner's STM, they lose the any protection under the DMCA.
The Ninth Circuit decided that it didn't have enough information to determine whether web site access was actually an STM or not, and so it sent the issue back down for the lower court to sort out.
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