Perfect 10 Loses Yet Another Ridiculous Copyright Lawsuit

We've written about the various and never-ending copyright lawsuits filed by Perfect 10 more than a few times. The company -- which claims to be in the porn magazine business -- seems to focus much more on suing as many internet companies as possible. Especially search engines. It loves to sue and blame search engines. Of course, its record in court is dismal. The company almost always loses and loses big. In some ways, Perfect 10 is actually incredibly useful: it has helped set a number of important precedents against over-aggressive copyright enforcement that have come in handy in other cases. The company has filed dozens of lawsuits, and the fact that it loses so many of them doesn't appear to faze the company. In fact, in one countersuit against Perfect 10, a very strong argument is made that the company is a type of copyright troll, whose business isn't in producing porn, but in suing companies. One of its latest lawsuits was against Yandex, the most popular search engine in Russia. Yandex is technically a Dutch company, but it has an American subsidiary, Yandex Inc., which does some development for Yandex.ru, the flagship Russian search engine. So it was this American presence that Perfect 10 sued, coming up with its usual twisted list of rationales for why this search engine, mostly based and used in Russia, should somehow be liable for the fact that its users can find images that Perfect 10 holds the copyright on hosted elsewhere. Once again, the case has gone badly for Perfect 10, with the court ruling for summary judgment on a variety of issues in favor of Yandex. The court not only says that Perfect 10's claims of direct infringement are completely unsupported, but also notes that the company, ridiculously, pointed to one of its other cases, against Amazon, to support this claim. Except, the judge actually read that ruling, and pointed out that it doesn't say what Perfect 10 appears to think it says:

According to Perfect 10, when its images are hosted on servers located in Russia, Yandex violates Perfect 10’s “exclusive display right” because users in the United States could download them. Perfect 10 supplies declarations establishing that a United States user could download Perfect 10 images from a Yandex server in Russia, but no evidence of actual downloads in the United States. This theory of liability is rejected. Although Perfect 10 cites Amazon in support of its argument, nowhere in that decision did our court of appeals endorse the idea that display of a copyrighted image anywhere in the world creates direct copyright liability in the United States merely because the image could be downloaded from a server abroad by someone in the United States. Such a principle would destroy the concept of territoriality inherent in the Copyright Act for works on the internet.

This kind of thing is repeated throughout. Perfect 10 makes some outlandish claim about how Yandex must be liable, and the court shoots it down for lack of any evidence or precedent to support Perfect 10's claim.

It is not necessary to address the validity of this theory merits. It fails for lack of proof.

Ouch. While Perfect 10's infamous lawsuit against Google over the thumbnail images in Google Images failed miserably, and was yet another victory for fair use and common sense, Perfect 10 tries again here. It claims that that case doesn't apply to image thumbnails in Yandex's search because Yandex provides direct links to the images, rather than the pages, unlike Google (though, I believe Google recently switched to something like this). The court is unimpressed, noting that the thumbnails are still fair use.

It is true that this integrated composite screen left the impression that the nude model image emanated from Yandex, but this objection fails for three reasons. First, our court of appeals expressly held that in-line linking to a full-size image does not constitute direct infringement. Id. at 1159–60. Without a direct infringement of the full-size image, the fair use defense does come into play — at least as to that full-size image. Second, whether a browser window shows only the thumbnail and the full-size image — instead of the full-size image along with part of the surrounding web page — does not affect whether the use of the thumbnail has been transformed. Third, even if yandex.com’s use of the thumbnail were broadly described as an ‘in-line link connected to a full-size image,’ that use remains highly transformative.

In other words, it's not the link that makes the difference here, but rather the purpose of such an image search engine, which is entirely different than a magazine. In typical Perfect 10 fashion, even when it presents evidence, that evidence is nonsensical and doesn'