Rest In Peace, Perfect10 v. Google: Epic Soft-Porn Copyright Struggle Finally Dismissed

Foley Hoag LLP - Trademark, Copyright & Unfair Competition

The firmament of copyright blog topics just got a little dimmer, and a lot better clothed. Last month, after eleven years, three Ninth Circuit opinions and 1,212 docket entries in the trial court, soft-porn multimedia company Perfect10, Inc. stipulated to the dismissal of its copyright infringement claims against Google (and others) in the Federal District Court for the Central District of California.

As blogged about here previously, the saga began in 2001, when Perfect10 sought to stop Google from including thumbnail versions of Perfect10 photographs in Google’s image search results. After Perfect10’s motion for a preliminary injunction was granted, the Ninth Circuit reversed and, in a landmark opinion, held that the thumbnails, although otherwise meeting the elements of direct infringement, were nonetheless highly transformative fair use.

After remand, Perfect10 sought to enjoin Chilling Effects, a non-profit educational website, from printing full-sized Perfect10 images in conjunction with scholarly articles about the lawsuit. This time, the trial court denied the motion and, last August, the Ninth Circuit affirmed.

After another remand, the parties engaged in nearly 6 months of discovery disputes, at the end of which the Court ordered Perfect10 to produce, among other things, a complete set of its financial records. The day after that order, Perfect10 stipulated to the dismissal of the case, with each party bearing its own costs and fees. Just like that, it was all over.

For those of you who admire Perfect10’s fearless approach to litigation or are sympathetic to its plight, its prolific efforts in court haven’t been all for naught. For example, last year, in a separate copyright infringement case brought against Megaupload (before that company became the international poster child for copyright infringement), Perfect10 successfully fended off a motion to dismiss and then negotiated a favorable (presumably) settlement. In addition, according to Pacer, Perfect10 still has several other active infringement claims in the California federal courts against other internet companies.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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