This latest suit is among a number of claims the adult publisher has brought against litigants through the years over the online availability of its adult content.
Perfect 10 operates Perfect10.com, with members paying $25.50 a month.
The suit, filed last week at federal court in Vancouver, B.C., mirrors Perfect 10’s ongoing claim against Google. In that case, Perfect 10 was dealt a setback when the 9th Circuit ruled it couldn’t overcome Google's fair use defense and vacated a preliminary injunction relative to thumbnails in Google Images.
“[W]e are still waiting for the Google case to be resolved, which may take another two years,” Perfect 10 President Norm Zada told XBIZ. “ In the process, Perfect 10 has been forced to close its magazine and has lost in excess of $65 million from infringement.”
Zada said that by suing Google in Canada, there are certain key advantages crucial to his offense.
“The Canadian judicial system is more streamlined, ‘fair use’ of photos is much harder to prove and the discovery system there is not so lengthy,” he said. “Google will be obligated to come up with requested documents quicker and without a problem, so it won’t be such a legal expense like it is in the U.S.
“In the past, they have said they can’t find any Perfect 10 images on their servers,” he said. “That is ludicrous that they are this technological powerhouse and can’t find the pictures.”
Zada said that Google not only reproduces Perfect 10 images in Google Images, but it creates thousands of links for infringing sites, while displaying AdSense advertising.
The suit said that “Google acts in partnerships with the infringing AdSense sites, sharing the revenue from clicks on Google ads placed next to infringing works.”
It also contends that infringing photos have also been reproduced through Google’s hosting services such as Google Blogger and Google Groups.
Google also has flouted its contention on the use of thumbnails not only on Canadian soil, but American as well, the suit said.
“Perfect 10 expressly notified Google in writing of its rights and of the prevalence of the infringing websites by approximately 68 notices, beginning in May 2001, identifying tens of thousands of infringing copies [of Perfect 10-owned images],” the suit said. “Perfect 10 further notified Google of these facts by way of a complaint filed in the U.S."
Zada said that in the Canadian complaint Google has infringed on nearly 50,000 of its images — more than 20,000 pictures and 18,000 thumbnails.
“Google has a wonderful advantage: they don’t have to pay for any of their content,” he said. “Google has ruined the newspaper industry, the film industry and the music industry. For all intensive purposes, no one has to pay for content anymore.”
The suit seeks an injunction and punitive and exemplary damages. Zada said that Canadian courts generally award $200 and up per infringed image in copyright cases.
“I don’t know how long this is going to take, but I firmly believe that Google will not be allowed to forever exploit the intellectual property of others for its own commercial gain,” Zada said. “We are in this to the bitter end.”
Zada also noted that Perfect 10 has commenced similar actions against Amazon.com in the U.S. and AOL.de in Germany.
Perfect 10 is represented in Vancouver by Christopher S. Wilson of Bull, Housser & Tupper.
