Porn suit is reinvigorated by US appeals court

Penetrating legal analysis

On remand, it's unlikely the district court will find that simply viewing a website constitutes an STM. STMs have to be developed across the content-industry in a way that incorporates an open, multi-industry standards process. Last we heard, viewing a web site was developed by Tim Berners-Lee a decade and a half ago, although we wouldn't be the least bit surprised if the content industry did decide to try and take credit for it.

Moreover, a decision for Perfect 10 on this issue would be a horrible policy choice, since it would strip the DMCA protection from any service provider that, for whatever reason, decided to block access to a site in good faith. Definitely not what Congress had in mind when it wrote up the safe harbor protections.

The final important piece of the decision should come as good news for fans of the Communications Decency Act immunity for interactive service providers. As you may know, that law protects interactive service providers from liability for information posted onto the service by another.

It does not, however, apply to intellectual property claims.

Perfect 10 argued in the suit that the porn sites using the CCBill's and CWIE's services had misappropriated its state-law right to publicity for the nudie models, which, as an intellectual property claim, would evade any immunity under the CDA.

The 9th Circuit ruled that the exception to the immunity for intellectual property claims applies only to federal intellectual property law, since Congress wouldn't have wanted to subject service providers to fifty different sets of state IP regulations.

This has some pretty serious ramifications. While most intellectual property law is based in the federal code, states do have some wacky IP laws that pose serious problems for service providers since the Internet is available across state lines.

After this decision, service providers can rely on the CDA's grant of immunity in relation to any state-law IP claims, and focus on complying with the requirements of federal IP law. (As long as they're sued in the 9th Circuit, that is.)

Overall, the 9th Circuit's ruling injected a small dose of legal Viagra into Perfect 10's drooping case, but it didn't actually put it to bed. Before the company has a chance of winning, they'll have to show that the DMCA protections don't protect CWIE and CCBill from the charges , then prove that the service providers actually infringed their copyrights. Thus, the truly hard part lies ahead for Perfect 10 - they must titillate the district court with some exhibitions, then go to the mats over the ins and outs of the case.

But that's something that Perfect 10 has proven itself to be good at, in more ways than one. ®

Kevin Fayle is an attorney, web editor and writer in San Francisco. He keeps a close eye on IP and International Law issues.

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