Adult Publisher Sues Google For Copyright Infringement

by Wendy Davis, Nov 22, 2004, 12:00 AM

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Fresh from a Nov. 15 defeat in court against Visa International Service Association and MasterCard International Inc., the adult entertainment company Perfect 10 has charged search giant Google with copyright infringement.

In a lawsuit filed in a federal district court in California on Friday, Perfect 10 charges that Google's "Images Search" engine violates copyright laws by providing users with links to sites alleged to have illegally copied Perfect 10's photos.

"It would be virtually impossible for consumers to locate most stolen content Web sites if they were not directed to them by defendants," the suit charges.

Perfect 10, which publishes a magazine and a Web site, claims that its images have been stolen by dozens of other Webmasters, many of whom are abroad and out of easy reach of the U.S. court system. Perfect 10 President Norm Zada says that his company has identified at least 4,000 pirated images available at no cost through Google's image search engine. Instead, charges Zada, users who type the name of a Perfect 10 model into Google's image search engine will receive thumbnails of Perfect 10-owned photos of that model. If users click on those links, they are sometimes directed to an offshore Web site, where they can view pirated photos for free.

Zada estimated that Perfect10.com, which charges subscription fees of $25.50 a month to access its Web site, perfect10.com, has lost $35 million due to the free availability of its images on the Internet.

Perfect 10 wants Google to pay damages and to exclude copyrighted images from its search returns. "They don't need to take all of my pictures in order to run their search engine," said Zada. For this effort, Perfect 10 has hired high-profile lawyer Russell Frackman, of Mitchell Silberberg & Knupp, known for successfully representing the Recording Industry Association of America in a copyright infringement case against Napster.

Intermediaries Targeted

The case against Google is just one of several brought recently by Perfect 10 against intermediaries, such as Visa and MasterCard, on the theory that the companies are enabling trafficking in stolen images. Courts generally have declined to hold third parties such as Google responsible for policing content on the Internet, said Fred von Lohmann, a staff attorney at the Electronic Frontier Foundation, a San Francisco-based cyber-liberties organization. One notorious exception was Napster--but, said von Lohmann, the facts were unusual because Napster exerted more control over the music traded on its site than do most intermediaries.

von Lohmann said that companies such as Perfect 10 "believe that Google should somehow have the responsibility to police on their behalf." He added that the Perfect 10 lawsuits are "part of a more general effort by copyright lawyers to extend the scope of secondary liability to all manner of intermediaries."

"Even if these services facilitate infringement, they also facilitate an enormous amount of legitimate activity," said von Lohmann.

Attorney Jerry Spiegel, a partner in Frankfurt Kurnit Klein & Selz, agreed with von Lohmann that Perfect 10 will have an uphill battle persuading a court to hold Google responsible for other Web sites posting pirated images. "They're making the leap," said Spiegel, "that just because bad stuff is happening, it's Google's fault."

AdSense Revenue

In Google's case, Perfect 10 alleges that Google profits through the illegal images by its advertising programs. One example given in the suit involves the AdSense program. When users click on Web sites that participate in AdSense, and then click on the ads found on those Web sites, Google stands to receive extra revenue.

In a potentially explosive allegation, Perfect 10 argues that this business model leads Google to return results on factors other than pure relevance. "Perfect 10 is informed and believes, and on that basis avers, that Web sites that are part of the AdSense program virtually always receive from Defendants a more prominent listing position than they otherwise would receive," reads the complaint.

Perfect 10 lawyer Dan Cooper said the charge in the complaint was based on "common sense" and "observation."

A Google spokesman said the company had not yet reviewed Perfect 10's complaint and couldn't comment on it. Google has always maintained that its search results are objective and not influenced by deals with advertisers.

If true, the charge would shock many observers, because Google has a reputation for only returning objective results. von Lohmann said he's highly skeptical of Perfect 10's allegation, given Google's long-stated practice of not giving preferential placement within search results. Peter Hershberg, managing partner of search marketing firm RepriseMedia, added that in the five-plus years he's worked in the search engine field, he has never before seen this charge leveled at Google.

The suit also alleges that Google infringes on Perfect 10's copyright by returning thumbnail images of copyrighted photos on its search results pages. Although small, the images are still "large and detailed enough to be identifiable and fulfill consumer demand for the images they embody," charges the suit.

But in a 2002 ruling in the case Kelly vs. Arriba Soft Corp., a federal appeals court held that displaying thumbnail images did not violate copyright law because doing so constituted "fair use" of the images. von Lohmann, who was involved in the Kelly case, said it clearly stands for the proposition that search engines may return thumbnail images.

Perfect 10 lawyer Dan Cooper maintains that his case is different because in the Kelly case, users who clicked on thumbnails were then taken to the real owner's Web site--giving the legitimate owner a chance to earn a profit. He said Perfect 10 has no such chance because users who click on the scaled-down images are not directed back to Perfect 10's Web site.

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