Tuesday, Aug 3, 2010    Text size: 

Perfect 10 accused the search engine giant of infringing on its copyright by linking to third-party websites that illegally feature its pictures, caching portions of websites that host infringing images and hosting infringing images on its own servers that have been uploaded by users of its Blogger service.

U.S. District Judge A. Howard Matz denied Perfect 10's complaints about Google's alleged practice of caching infringing material. Matz said Google does not store cached images on its servers, instead linking to an image's original source.

In three separate motions, Google has moved for partial summary judgment that it is entitled to immunity under three provisions of the Digital Millennium Copyright Act.

The court granted in part and denied in part Google’s motion for partial summary judgment of entitlement to safe harbor. A fraction of Perfect 10's infringement claims against Google has survived a summary judgment

Perfect 10 argues that Google acquired knowledge of infringement upon receiving take-down notices of infringement from Perfect 10 and that once Google had this knowledge, it didn’t act fast enough to suppress the infringing links.

Matz ruled Google may not have acted quickly enough, but he also said that Google already has an adequate policy for dealing with copyright infringement.

The policy requires those complaining of copyright infringement to send DMCA notices specifying the infringed works and where to locate it. Google then verifies that the work is infringed and blocks the URL from appearing in Google search results, Matz said in his ruling.

Google also closes accounts on its Blogger service if it verifies three DMCA notices against one account holder.

Perfect 10 claimed Google failed to implement a valid repeat offender procedure and that Google has not responded to all of the 83 links it has complained about since 2001.

But Google correctly argued that it was only obligated to respond to notices that comply with the DMCA, Matz ruled.

Google said that Perfect 10 sent 17 notices but failed to identify which specified copyrighted works were being infringed. An additional 18 notices that were sent left out important identifying information and often listed only the top-level URL for an entire website rather than the specific page where the infringement occurred.

Matz wrote, “The responsibility for clearly documenting infringement falls on the copyright owner. Accepting Perfect 10's jigsaw notices would impermissibly shift a substantial burden from the copyright owner to the provider.”

But in the case of 48 notices Perfect 10 sent to Google, some of which were sufficient under the DMCA, Google did not present clear enough evidence that it either acted quickly on the sufficient notices or that it was not required to respond.

While Google showed that, in some cases, it had acted within one or two weeks to block infringing URLs, in other cases it may have waited from between four and 17 months act, or may not have acted at all.

"The factual dispute as to how long the processing took precludes summary judgment for Google" on those notices, Matz wrote.

Calls to Perfect 10 owner Norman Zada went unreturned by post time.