SAN FRANCISCO—Perfect 10 v. Google has been going on for so long that law school students could have studied the copyright infringement lawsuit in real time for the duration of their tenure as well as half of their undergraduate years ... and maybe even longer considering the fact that it is still ongoing despite numerous setbacks for the producer of high-end erotica. Perfect 10 founder Dr. Norm Zada simply does not give up, and has appealed the most recent District Court rulings back to the Ninth Circuit U.S. Court of Appeals, which has previously ruled in Google’s favor.
The most recent skirmish in the case is an odd one, though, as it involves a clearinghouse service for take-down notices under the Digital Millennium Copyright Act (DMCA) that Perfect 10 has previously used in this very case but which it is now claiming also violates its copyrights.
The service is called Chilling Effects, “A joint project of the Electronic Frontier Foundation (EFF) and Harvard, Stanford, Berkeley, University of San Francisco, University of Maine, George Washington School of Law, and Santa Clara University School of Law clinics.”
Chilling Effects “gathers and analyzes legal notices alleging online copyright infringement. More than 12,000 notices are available for public review, education and study, and the data there has been the basis for a number of scholarly papers about copyright law and the Internet,” according to EFF, which this week filed a friend of the court brief with the Ninth Circuit that was co-written by the other founders and participants in the Chilling Effects Clearinghouse.
Perfect 10 had argued that DMCA notices sent by Perfect 10 to Google that have subsequently been forwarded on to Chilling Effects violate its copyright because the notices also include Perfect 10 images.
EFF has argued that despite that fact the notices do not violate copyright law because, as the judge in the case, A. Howard Matz, has ruled, “In order for the administrators of Chilling Effects to be able to conduct and communicate their research effectively, they would to have access and be able to comment on the notices in their original form.”
EFF further states in its amicus, “Indeed, in the years that Chilling Effects has been collecting and analyzing DMCA notices, only a handful of notices have been submitted which themselves contain copyrighted works. Most of these were submitted by Perfect 10.” Some of those notices, the brief continued, even contained “complete, high-resolution copies of the works alleged to have been infringed. It is not clear why Perfect 10 chose to include full copies of the photographs at issue, as they are not necessary to identify either the allegedly infringed work or the location of the allegedly infringing website. But whatever information the copyright holder chooses to include in the DMCA notice, that information is an important subject of study, and … reproduction of entire notices is necessary.”
Thus, EFF seems to be arguing, Perfect 10 is itself responsible for providing the content in its notices that it is now saying should not be available to Chilling Effects. Further confusing its argument, according to EFF, is the fact that Perfect 10 itself has relied upon Chilling Effects documentation in the Google case and in other copyright infringement cases that it has brought against entities such as Amazon and Microsoft, among others.
“Perfect 10 uses Chilling Effects for the same purpose that scholars and policy makes do,” wrote EFF. “To provide concrete information about the ways in which the DMCA process is being used.”
In the end this will probably be a temporary diversion in Perfect 10 v. Google, which is now solely focused on the question of whether the DMCA notices Perfect 10 sent to Google complied with the copyright statute. The District Court said they were not sufficient, a ruling that Zada wants the Ninth Circuit to affirm. In the meantime, EFF is claiming that seemingly innocuous side shows like the Chilling Effects claim could have real-life chilling effects.
"People scour the Chilling Effects archive in order to write academic papers and research the law, not to look for adult photos," said EFF Legal Director Cindy Cohn. "As the district court recognized, this is another bogus copyright claim from Perfect 10 that could have dangerous ramifications for fair use and the Internet."
The EFF amicus brief can be read here.