If you thought that the Perfect 10 v. Google case had been resolved long ago, you, like me, would be wrong. Perfect 10 v. Google, 10-56316 (Ninth Circuit August 3, 2011) is the latest decision by the Ninth Circuit deciding that Perfect 10 should not get an injunction. In this latest decision again denying Perfect 10 a preliminary injunction, the Ninth Circuit expressly adopted the Supreme Court’s logic in the EBay case which rejected a presumption of irreparable harm in a patent infringement case. Ebay Inc v. MercExchange, 547 U.S. 388 (2006).For some time, if a copyright owner showed ownership of a copyrighted work and showed that the defendant had engaged in unauthorized copying, courts presumed that irreparable harm had been shown and shifted the burden of proof to the defendant. The EBay standard makes getting a preliminary injunction much tougher for copyright owners, reducing the immediate settlement value of many infringement claims.
Perfect 10 is a rather unsympathetic plaintiff, suing Google for its caching of the entire internet and its practice of sending copies of all cease and desist letters to the Chilling Effects website. Perfect 10 alleges that because someone could look at a cease and desist letter, then click on the link to view an unauthorized photograph, that it has lost millions of dollars, since consumers won’t pay a subscription for its soft-core pornography when it can be found for free. At the core of most of Perfect 10’s complaints is that its own subscribers repost images on such services as Blogger.
Since Google is so useful and has adopted what appear to be reasonable anti-infringement policies, it is a sympathetic defendant. There may be more sympathy for Perfect 10’s position to be found in an amicus brief filed by the Picture Archive Council of America and others, I didn’t dig into this. An unsympathetic plaintiff who fails to develop a proper record may sometimes shape the law in ways that is undesirable for many others, particularly working photographers needing legitimate protections against republication of original images. This may well be such a case. Treating copyrights as fungible goods may not necessarily serve the best interests of society and shifting the cost burden to copyright owners may well be unfair in the case of individual authors who may well be deprived of all bargaining power in cases of legitimate and truly irreparable injury.
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