Perfect 10, Inc., the former publisher of Perfect 10 Magazine, announced today that it has just filed its second motion for preliminary injunction in its ongoing lawsuit against Google, currently pending in the United States District Court for the Central District of California. "We just can't go on without immediate relief," said Dr. Norm Zada, President of Perfect 10 and a former professor at Stanford and Columbia Universities. "Google is now displaying 22,000 Perfect 10 thumbnails in its search results, and is linking those infringing images to thousands of infringing websites who are in turn, offering hundreds of thousands of free Perfect 10 Images," says Zada. "Virtually all of our intellectual property is being offered for free by Google to its users," says Zada. "Google is placing ads around thousands of our copyrighted images and is making money from clicks on those ads, but is paying us nothing," adds Zada.
Zada said that Perfect 10 had to take action because of seven new developments that were not before the District Court in August 2005, when Perfect 10 filed its first motion for preliminary injunction. In response to that motion, the District Court granted Perfect 10 an injunction against Google's display of Perfect 10 thumbnails in Google's search results. That injunction was later vacated by the Ninth Circuit in 2007, which sent the case back to the District Court with the following guideline:
"There is no dispute that Google substantially assists websites to distribute their infringing copies to a worldwide market and assists a worldwide audience of users to access infringing materials. We cannot discount the effect of such a service on copyright owners, even though Google's assistance is available to all websites, not just infringing ones. Applying our test, Google could be held contributorily liable if it had knowledge that infringing Perfect 10 images were available using its search engine, could take simple measures to prevent further damage to Perfect 10's copyrighted works, and failed to take such steps."
Perfect 10, Inc. v. Amazon.com, Inc., Google, Inc., 508 F.3d 1146, 1172 (9th Cir. 2007).
Perfect 10's motion is based on those seven new developments, along with Perfect 10's contention that Google has not taken simple measures to prevent further damage to Perfect 10's copyrighted works, as required by the Ninth Circuit, despite 167 notices of infringement from Perfect 10.
"There are a number of reasons why we believe that the Court should grant our new motion," says Zada. "First, Google did not disclose to the Court in 2005 that it hosted thousands of infringing websites and that it was storing full-size Perfect 10 images on it servers that it was displaying to its users," says Zada. "Since that time, the number of full-size Perfect 10 Images that Google is hosting and displaying from Google servers has grown to over 3,800, and Google has failed to remove those images despite repeated notice. In other words, Google is not just a search engine. Google also hosts infringing websites on which it places Google ads, and it sends traffic to these websites via its search results. Had the District Court and the Ninth Circuit known the full extent of Google's involvement in the infringement of full-size Perfect 10 Images, and Google's unauthorized commercial exploitation of those images, their rulings might have been completely different," adds Zada. "We are entitled to a ruling based on the true facts," adds Zada.
"Second, image recognition technology is now available. Google could use such technology to readily remove the 22,000 Perfect 10 thumbnails it is currently displaying in its Image Search results, but it has failed to do so. I believe this is because Google is making money by using thousands of our images and those of other copyright holders, to attract millions of users who wish to view and/or download for free, infringing images, songs, and movies.
"Third, Google is currently providing at least 222 million links to websites which are infringing, in total, millions of copies of Perfect 10 Images. Google will not take any action at all against most infringing websites. It has admitted that it will only remove a link if it leads directly to an infringing work. This policy means that Google will not take any action against infringing paysites, and that it will remove, on average, only 1 link in 7,000 to an infringing website. Google's position is tantamount to suggesting that it is permissible to receive payment for directing users to a warehouse selling stolen cars as long as you do not direct them to any particular car. Google's policy of removing almost no links to known infringing websites does not protect copyright holders. We do not believe that the Court will sanction such an anti-copyright policy," adds Zada.
"Fourth, in the last few months, Google has begun to forward our confidential notices of infringement, which include full-size downloadable images and live links, for publication on the Internet via its partner, chillingeffects.org. By doing so, Google is effectively reinstating the infringing material we asked it to remove. Google's new outrageous conduct is making it impossible for us to send notices of infringement to Google," adds Zada.
"Additionally, Google has lost several cases in Germany and at least one case in France, where the Courts ruled, in much less egregious cases, that Google's use of thumbnails was not a fair use," adds Zada. "Google's display of 22,000 Perfect 10 thumbnails, and its use of those thumbnails to promote itself and the infringing websites that stole those thumbnails, which has resulted in the complete destruction of Perfect 10's business, cannot possibly be reasonably judged to be 'fair,'" adds Zada.
Perfect 10 was forced to close Perfect 10 Magazine, a magazine which featured scantily clad images of some of the world's most beautiful natural models, in June 2007. It still runs its website, perfect10.com. Perfect 10 filed its lawsuit against Google on November 19, 2004. Perfect 10 alleges in the lawsuit that Google is liable for copyright infringement because it makes unauthorized copies of thousands of Perfect 10 images, places Google ads around those images without Perfect 10's permission, stores full-size Perfect 10 images on Google servers, displays passwords to Perfect 10's website, and basically offers all of Perfect 10's intellectual property to the public for free, thereby completely usurping Perfect 10's entire business.
Perfect 10 contends that Google makes millions of dollars by placing Google Ads around tens of thousands of images, including celebrity images that Google does not own, and that Google's search results vastly favor infringing websites over legitimate businesses. "Google is currently providing approximately 222 million links to 108 websites known to be infringing," says Zada. "This amounts to approximately 2,000,000 links to each infringer, even though we have sent Google at least ten notices of infringement regarding many of these websites. In contrast, Google provides less than 1,000 links to legitimate websites like McDonald's," Zada adds.
Photos/Multimedia Gallery Available: http://www.businesswire.com/cgi-bin/mmg.cgi?eid=6203779&lang=en
Contacts:
Perfect 10, Inc.
Norm Zada, Ph.D., 310-205-9988
normanz@earthlink.net
or
Law
Offices ofJeffrey N. Mausner
Jeffrey Mausner, 310-617-8100
Jeff@Mausnerlaw.com