Commentary

Federal Appeals Court: Google Can Forward Takedown Notices To Chilling Effects

A federal appellate court handed a victory to Google, and to Chilling Effects Clearinghouse, in the 7-year-old copyright infringement lawsuit brought by adult entertainment company Perfect 10.

The 9th Circuit Court of Appeals today upheld a trial judge's decision to allow Google to continue forwarding takedown notices to Chilling Effects, a project created by digital rights advocates to monitor allegations of online copyright infringement.

Those notices included copies of some of the images that Perfect 10 alleges are copyrighted. The company argued that its copyright was being infringed because now those images, and the URL to the host sites, were available for free through Chilling Effects' Web site.

Last year, U.S. District Court Judge A. Howard Matz rejected Perfect 10's argument that Google had infringed copyright by forwarding the Digital Millennium Copyright Act takedown notices to Chilling Effects. He ruled that sending the notices was a fair use of the material. (Matz also dealt a significant blow to the heart of Perfect 10's infringement case 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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Perfect 10 appealed Matz's decision to the 9th Circuit and also asked that court to order Google to stop forwarding notices to Chilling Effects. The 9th Circuit today refused to do so. Among other reasons, Perfect 10 didn't show that its business had been harmed by the free images. "Notwithstanding Perfect 10's theory of irreparable harm, it failed to submit a statement from even a single former subscriber who ceased paying for Perfect 10's service because of the content freely available via Google," the court wrote.

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