Google Off the Hook for|Some Perfect 10 Links

     LOS ANGELES (CN) – A federal judge has cleared Google of more than half of the 83 copyright infringement claims filed by the soft-core porn website Perfect 10, which accused Google of linking to sites that illegally feature its pictures, hosting infringing blogs and caching pictures from infringing websites.

     U.S. District Judge A. Howard Matz found that Google already has an adequate policy for dealing with copyright infringement. But in some cases, Matz said, the search giant may not have acted quickly enough. A fraction of Perfect 10’s infringement claims survived summary judgment.
     Under Google policy, those complaining of copyright infringement must send Google a Digital Millennium Copyright Act (DMCA) notice specifying the allegedly infringed work and how to locate it.
“Google then verifies that the copyrighted work is, in fact, infringed, and, if so, blocks the infringing URL from appearing in Google search results,” Matz explained. “Google allows the operator of the infringing website to file a counter-notification, which would then unblock the URL, unless the complainant files a lawsuit within 10 days.”
Google also closes accounts on its Blogger service if it verifies three DMCA notices against one account holder.
Perfect 10 claimed that Google failed to implement a valid repeat offender procedure and that Google has not responded to all of the 83 links it has complained about since 2001.
But Google correctly argued that it was only obligated to respond to notices that comply with the DMCA, Matz ruled.
Google and Perfect 10 divided the notices into three groups, based on the format Perfect 10 used to communicate its complaints.
Google “offered undisputed evidence” that Perfect 10 sent the first group, consisting of at least 17 notices, to, instead of sending them to Google’s designated agent at the copyright office, Matz found. Also, on those same 17 notices, Perfect 10 did not identify which specific copyrighted works it claimed were being infringed.
In another group of 18 notices, Perfect 10 again left out important identifying information and often listed only the top-level URL for an entire website, rather than the URL for the specific page where the infringement allegedly occurred.
Perfect 10 “evidently expected Google to comb through hundreds of nested folders containing over 70,000 distinct files, including raw images such as JPEG files and screen shots of Google search results, in order to find which link was allegedly infringing,” Matz wrote.
The responsibility for clearly documenting infringement falls on the copyright owner, Matz said. Accepting Perfect 10’s jigsaw notices would “impermissibly ‘shift a substantial burden from the copyright owner to the provider,'” Matz wrote, quoting from a 9th Circuit decision.
Because Google has shown that it closed Blogger accounts when it found active and blatant infringement, the only question is whether Google responded quickly enough to Perfect 10’s notices about its Blogger pages.
But Matz said Perfect 10 did not make the argument that Google had responded too slowly in those cases. Nor did Perfect 10 claim that Google makes money from the Blogger sites – a DMCA requirement for denial of safe harbor. Matz added that many of the Blogger notices include haphazard lists of alleged infringements.
The judge also denied Perfect 10’s complaints about Google’s alleged practice of caching infringing material. Matz said Google does not store cached images on its servers, instead linking to an image’s original source. As such, Perfect 10’s claims about Google’s cached images are really claims about Google’s practice of linking to “outside infringing content,” so they are subject to the same DMCA requirements. Many of Perfect 10’s notices over Google’s cached images lacked specific navigational information, with one referring generically to a website that allegedly featured “thousands of Perfect 10 infringements.”
But in the case of 48 notices Perfect 10 sent to Google in spreadsheet format, some of which were sufficient under the DMCA, Google did not present clear enough evidence that it either acted quickly on the sufficient notices or that it was not required to respond.
While Google showed that, in some cases, it had acted within one or two weeks to block infringing URLs, in other cases it may have waited from between four and 17 months act, or may not have acted at all.
“The factual dispute as to how long the processing took precludes summary judgment for Google” on those notices, Judge Matz wrote, denying Google’s request for safe harbor under the Copyright Act for “at least some” of the 48 notices.

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