WASHINGTON — The parent company of Pink Visual, once a commanding web platform for original adult content, has filed a petition with the U.S. Supreme Court to review its copyright infringement lawsuit against adult tube site Motherless.com.
The decision to seek a high court review comes after Pink Visual’s parent, Ventura Content, was denied a rehearing at the 9th U.S. Circuit Court of Appeals after it sued Motherless after 19 copyrighted films, including 33 scenes, owned by the web platform, were found on the adult tube site.
The case was dismissed in 2013 on summary judgment after U.S. District Judge Stephen Wilson in Los Angeles ruled that Motherless' operators were entitled to the Digital Millennium Copyright Act's safe-harbor provisions as an internet service provider.
Pink Visual, in its suit, alleged Motherless.com hadn't “reasonably” implemented effective procedures, including expelling repeat infringers, for dealing with DMCA-complaint notifications over stolen content. It contended in court proceedings that Motherless.com wasn’t merely a passive receptacle of postings over which it exercises no control.
But the 9th Circuit rejected Pink Visual’s contention that Motherless.com exercised such tight control over the content that it, and that its third-party users were responsible for the postings.
In its petition for a writ of certiorari filed at the U.S. Supreme Court last week, Pink Visual’s counsel, Peter Afrasiabi, said that federal courts are creating “a new monster” by allowing full immunity to online pirates.
“The lower courts, acting out of a fear of derailing the internet’s development have instead given birth to a new monster: the online service provider publisher that is brazenly rich only from others’ content, never pays for any content it publishes, knows the content is infringing, has full control over what is published on its platform, does not have to terminate known repeat infringers because unwritten ‘I know repeat infringement when I see it’ policies suffice, and thus enjoys full immunity from copyright law,” Pink Visual’s counsel wrote in the petition.
“It is time for this court to bring balance to the DMCA, which never intended, nor facially permits, such staggering dissonance between online and offline liability standards.”
Pink Visual in the petition told U.S. justices that review of the case is warranted because a split exists in U.S. appeals courts on the meaning of a “reasonable termination policy for repeat infringers” under 17 U.S.C. § 512 (i), which spells out conditions for eligibility in regards to liability relating to material online.
It also said that review is warranted on 17 U.S.C. § 512 (c) over liability in regards to where information resides on systems and networks.
“Because the 9th Circuit has eviscerated the principle that actual and apparent knowledge of mass infringing activity using one’s wares serves as a basis for copyright liability of Grokster,” Pink Visual said in the opinion.
The high court’s ruling in Grokster held that peer-to-peer file sharing companies can be sued for inducing infringement for acts taken in the course of marketing file-sharing software.
At post time, U.S. justices have not determined they will take the case. If the court does take the case, it would be the first time justices have reviewed the DMCA.