Sunday, December 09, 2007

May Credit Card Processors Be Contributorily Liable for Copyright Infringement?

According to its Wikipedia entry Perfect 10 magazine ceased publishing and has gone solely to an online format. I visited the Perfect 10 website, which has generated a tremendous amount of copyright litigation. The photographs were a bit too racy to reference here.
In Perfect 10 v. Google, these purveyors of photographs of naturally beautiful women temporarily succeeded in enjoining Google from continuing its Google Images search. The Ninth Circuit, however, overturned the District Court's injunction, finding that Google's use of thumbnail images is highly transformative. My May 20, 2007 post on that case is here.
Perfect 10 recently went after credit card processing companies that facilitate transactions involving copyright infringement. Perfect 10, Inc. v. Visa International Service Assn., 494 F.3d 788 (2007). Visa won a 12(b)(6) motion to dismiss the claims against it for contributory and vicarious copyright infringement. The court found that the credit card processors, unlike a the swap meet organizer in the Fonovisa case, or the players in Napster or Grokster, did not actually get involved in the infringement process.
Judge Alex Kozinski entered a spirited dissent. He pointed out that Perfect 10 had alleged that infringers were operating offshore and reaching the U.S. through the credit card processors. If you are suing a copyright infringer who is operating offshore and profiting through use of credit cards, you should be aware of his well-reasoned dissent when you put your pleadings together.

1 comment:

S. Nichols said...

i'm not sure that the companies that do the credit card processing for these infringement transactions are the ones that should be held accountable here. it seems entirely backwards that the company that isn't really associated with the materials is responsible for issues that are irrelevant to the actual credit card processing itself. if these items were bought with cash, should the US Treasury be held responsible?? it just doesn't make a whole lot of sense to me.