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A publisher of adult photos can no longer raise claims that Google infringed its copyright in the US following a stipulation by a district court in California.

The court said Perfect 10's claims that Google infringed its rights had been "voluntarily dismissed with prejudice", and that the publisher could not appeal against the decision in the future. It marks the end of Perfect 10's long-running battle with Google in the US courts, although its case against the internet giant in Canada is still ongoing.

Perfect 10 is a publisher of nude photographs. In 2004 it sued Google because that Google's search engine displayed small thumbnail images of its pictures when giving certain search results – content it otherwise charged users to see.

In 2007, following a protracted legal battle, the US Court of Appeals ruled against Perfect 10 in a key issue in the case. The Court said that the creation and display of thumbnail images was not copyright infringement. It also said that Google was not responsible for the copyright violations of other sites which it framed and linked to.

It also ruled that Google could not be said to be distributing the full-size images because it did not hold a copy of them and that it merely indexed them instead.

A lower court had placed an injunction on Google's publishing of the thumbnails, but that was lifted by the Court of Appeals, which said the publishing qualified as 'fair use' under the US' Digital Millennium Copyright Act (DCMA).

In the US the 'fair use' exemption in copyright law allows copyright material to be reproduced for the purposes of research and education, commentary, criticism and reporting.

Whether reproduction of copyrighted works is protected by the 'fair use' defence depends on the consideration of certain factors, including the purpose and character of use and whether it was for commercial gain or not, the nature of the copyrighted work itself, how much of the copyrighted work was reproduced and the effect of that use on the potential market for or value of the work.

Google has also been successful since the Court of Appeals' ruling in winning a legal battle over the way Perfect 10 served notice to it of alleged infringing content Google was providing links to. In 2010 a district court in California ruled that Perfect 10 failed to give Google the kind of specific notice required by the DMCA in most cases, and therefore had no right to sue for Google's refusal to take down those images.

In order to force a publisher to take material down, a copyright owner must identify the copyrighted work which is being infringed and provide the link which leads to the infringing material.

However, the district court ruled that some notices were sent to the wrong email address, some contained links which were invalid and some consisted of material which was not well enough organised or clear enough to count as a legitimate notice.

The ruling by the Court of Appeals did not prevent Perfect 10 raising a number of subsequently secondary liability claims against Google in relation to its copyrights, according to a report by Torrent Freak. The company even offered a reward of $25,000 to anyone who could provide them "with the most compelling non-public evidence of Google illegal conduct" prior to 28 February this year.

"The type of evidence we are looking for would be emails between a webmaster and Google, showing that Google aided or condoned copyright infringement, or that Google was involved in other illegal activities not known to the general public," the company's call for evidence - still viewable on its website - said.

However, Perfect 10's legal challenge in the US has now been stopped following the stipulation by the Californian district court – a process Google has claimed Perfect 10 initiated.

"Perfect 10 ... and ... Google ... stipulate that this entire action shall be voluntarily dismissed with prejudice, including but not limited to all claims arising from any Google act or omission on or before the date of dismissal of this action, or any DMCA notices sent by Perfect 10 on or before the date of dismissal of this action, with each party to bear its own attorney’s fees and costs," the district court's stipulation said.

"Perfect 10 agrees not to commence any future lawsuit against Google in any court arising from any such Google act or omission on or before the date of dismissal of this action, or any such DMCA notices sent by Perfect 10 on or before the date of dismissal of this action. By this Stipulation, Perfect 10 does not intend to dismiss the lawsuit brought by Perfect 10 in Canada against Google. No appeal may be taken, and no motion to alter, amend or be relieved from the judgment in this action may be filed, by either party," it said.

A Google spokesperson said: “We always asserted that there was no merit to this case," according to the Torrent Freak report. "[Perfect 10] seemed to agree: last week he asked for a dismissal of the case with prejudice," they said.

Copyright © 2012, Out-Law.com

Out-Law.com is part of international law firm Pinsent Masons.

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