Commentary

Perfect 10 TO Appellate Court: Forwarding DMCA Notices Infringes Copyright

Adult entertainment company Perfect 10 has been one of the more aggressive content owners when it comes to policing its copyright. To date, the company has sued Google, Amazon and Rapidshare, arguing that the companies infringe copyright by returning Perfect 10 images in search results or by hosting images uploaded by users.

But for all its litigiousness, the company has had some big losses. In May, a federal judge denied Perfect 10's request for an injunction against Rapidshare, in part because Perfect 10 didn't provide Rapidshare with detailed notices about which material should be taken down.

And in July, U. S. District Court Judge A. Howard Matz handed Perfect 10 a significant defeat when he largely cleared Google for allegedly displaying links in search results to infringing sites. Matz found that in many cases, Perfect 10 had not provided the search company with detailed enough information to be able to easily remove the pirated material.

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Matz also shot down a separate argument by Perfect 10 that Google had infringed copyright by forwarding the Digital Millennium Copyright Act takedown notices to Chilling Effects Clearinghouse, a project created by digital rights advocates.

The notices forwarded by Google included copies of some of the images that Perfect 10 alleges are copyrighted. Even so, Matz ruled that Google's forwarding of them was a fair use. Perfect 10 then appealed to the 9th Circuit, arguing that Matz's decision should be reversed.

This week, digital rights group Electronic Frontier Foundation and other founders of Chilling Effects Clearinghouse filed a friend-of-the-court brief arguing that Matz correctly decided that sending notices to Chilling Effects is a fair use.

"Chilling Effects' scholarly, research-based use of the DMCA notices, and Google's facilitation of that use, is squarely within the boundaries of fair use, even when the DMCA notice includes creative copyrighted works such as the photographs of women at issue here," the groups argue. "Chilling Effects does not infringe copyright by operating that public resource, and Google does not infringe copyright when it enriches that resource by submitting DMCA notices."

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