Veteran Loser Perfect 10's Latest Ninth Circuit Defeat

In the 1940s, Jehovah's Witnesses, tenaciously litigious in defense of free expression, generated a half-dozen Supreme Court decisions that came to define First Amendment rights in the 20th century. With comparable persistence, but in the service of less lofty interests, erotic-photo publisher Perfect 10 has fought—and nearly always lost—a series of reported cases that have, in significant part, come to define the contours of the law of copyright infringement in the online realm. The company's latest Ninth Circuit loss, however, in Perfect 10 v. Giganews, does not so much resolve unsettled questions of copyright law as confirm established standards.

(Disclosure: Fenwick & West represents Giganews in this litigation.)

Perfect 10's copyrighted images of naked women are found across the internet, and Perfect 10 has devoted considerable energy to trying to hold third parties responsible for alleged infringements, meeting many defeats.

In Perfect 10 v. CCBill, the court rejected Perfect 10's claim that CCBill was liable for providing web hosting and online credit card services to internet enterprises that allegedly infringed Perfect 10's copyrights. In Perfect 10 v. Amazon, Inc. (involving Google), the Ninth Circuit held that the copying of images by Google's visual search engine, in order to display thumbnail search results, represented fair use. The court further held that Google did not itself publicly display images (and hence did not directly infringe) when its search engine employed "frames" to facilitate end users' viewing of allegedly infringing content stored on other websites. And in Perfect 10 v. Visa, the court held Visa and MasterCard were not secondarily liable for processing payments for merchants Perfect 10 had accused of infringement.

Perfect 10 remained undaunted by losses, perhaps because the company is not so much in the business of publishing as in the business of extracting revenue from litigation settlements—largely, it appears, against parties not in a position to fully litigate. As the district court observed in Giganews, across the lifetime of Perfect 10, most of its revenues have been derived not from publication but from litigation and, more specifically, from settlements and defaults because "Perfect 10 has never obtained a judgment in a contested proceeding."

In its latest foray, Perfect 10 tilted against two USENET service providers, Giganews and Livewire, which respectively host or provide access to USENET...