The brief, filed at the 9th U.S. Circuit Court of Appeals in San Francisco, rejects Perfect 10’s claim that Google is infringing on its copyright by forwarding its DMCA notices to Chilling Effects Clearinghouse because Perfect 10’s protected images are included in the notices.
The Chilling Effects Clearinghouse is a joint project of the Electronic Frontier Foundation and various leading universities.
“Chilling Effects Clearinghouse serves an important role in the DMCA scheme, enabling scholars and members of the public to view and analyze the ways in which the DMCA takedown process is used by maintaining a public archive of DMCA notices,” the brief said.
But Perfect 10’s Norm Zada told XBIZ that there was no legitimate reason why Google and Chilling Effects had to post all of Perfect 10 images contained in the DMCA notices on the Internet, making them available to the general public for viewing and downloading.
"There is no reason for Google and Chilling Effects to republish on the Internet the very images and live links we asked Google to remove,” Zada said.
“They could have redacted or suppressed all the infringing material but did not do so. If ISPs are allowed to re-instate on the Internet the very material they are asked to remove, that will result in the complete evisceration of the DMCA."
According to the brief, Chilling Effects Clearinghouse is a public resource providing information and analysis of notices sent pursuant to the Digital Millennium Copyright Act and other cease-and-desist communications regarding Internet content.
“Chilling Effects gathers submissions from online service providers, users of online services, and copyright holders and makes those submissions available for review and study by scholars and interested members of the general public.
“To determine whether that balance is being achieved, the public needs information about how the safe harbors are working,” the filing said.
“By contributing to the archive and by providing the public with notice of its actions in response to DMCA notices, Google is not infringing copyright or contributing to infringement. Instead, Google is making available information which helps the public understand the takedown process and stimulates study, legal analysis, and public policy debate.”