LOS ANGELES—"Never say die" must be Norm Zada's life motto. The founder of Perfect 10 has been a motivated plaintiff in copyright infringement litigation seemingly forever—having over the past decade sued the likes of Google, Visa/MasterCard, Tumblr, Microsoft and Amazon, to name a few—and he shows no signs of slowing (or giving) up. Last week, the company filed what amounts to a $188 million lawsuit in Los Angeles federal court against OVH, the humongous French hosting company that offers local services not only in France, but also in Germany, Italy, Poland, Spain, Ireland, the United Kingdom, the Netherlands, Lithuania, Finland, the United States and Canada.
Perfect 10's strategy is long-term, to say the least. As TorrentFreak's Ernesto wrote today of the publisher's storied litigation, "While Perfect 10 lacks a clear victory, it has achieved several settlements which has motivated the company to continue its legal crusade." According to the complaint, though, the years have taken a considerable toll on Perfect 10's finances.
That fateful dynamic is laid out in detail in the complaint, which explains, "Perfect 10’s business and livelihood is based upon the copyrighted images that it owns and to which it sells access. Unfortunately, the theft of copyrighted material on the Internet has reached epidemic proportions. Infringing websites exploit images that Perfect 10 has spent substantial sums of money to create, and Perfect 10’s Copyrighted Works now appear for free all over the Internet, including thousands of infringing Perfect 10 images hosted by Defendants. As a result, Perfect 10’s revenues have declined from approximately $2 million per year in 2002 to roughly $70,000 per year today.
"Based on traffic statistics provided by third party Alexa (a subsidiary of Amazon, Inc.)," it continues, "individuals in Los Angeles County have viewed or downloaded infringing Perfect 10 images hosted by Defendants hundreds of thousands of times. Perfect 10 has lost more than $50 million over a sixteen-year period and is struggling to retain its few remaining employees."
Regarding the specific allegations, Perfect 10 charges OVH with not only providing hosting for known pirate sites, but for also" willfully allowing copyright-infringing internet traffic from third-party locations to pass through its American backbone."
The complaint specifically alleges, "Third-party websites located in the United States, including Google.com, msn.com, yahoo.com, and blekko.com, among many others, have copied, distributed, and/or displayed thousands of infringing Perfect 10 Copyrighted Works hosted by Defendants. Defendants host and provide Internet connectivity and other essential services for these websites. Defendants have used and continue to use their communications network, including the POPs and fiber optics in the United States to transmit tens of thousands of infringing Perfect 10 images to users in California who download such images onto their computers."
Further adding to its claim that despite being a French company, OVH maintains a very large footprint in the United States, the complaint adds, "The OVH Defendants claim to provide services to more than 700,000 customers in 16 countries, and are the third largest hosting provider in the world. OVH currently owns American POPs in Atlanta, Chicago, Dallas, Los Angeles, Miami, Newark, New York, Palo Alto, San Jose, San Francisco, and Seattle.
"Perfect 10," it continues, "is informed and believes, and based thereon alleges, that the Defendants currently host or have recently hosted the following websites that have infringed Perfect 10’s copyrights: celeb.to, celebforum.to, daily-ladies.com, gallery-dump.com, erooups.com, gophoto.us, hatuncenter.net, imagechunk.com, sualize.us, imgmaster.net, imagerise.com, ohfree.net, pixhost.eu, redblow.com, tuxboard.com, visualizeus.com, and wallpaperpanda.com."
Alleging in a lawsuit that a hosting company is liable for copyright infringement on its networks is also a risky proposition, to be sure. And as TF notes, copyright infringement claims in the form of DMCA notices sent to hosting companies are always forwarded "to their clients, who are then responsible for resolving the issue."
But it also is apparent, as TF also observes, that "Perfect 10 wants to challenge this safe harbor principle."
It's that uphill legal battle that suggests Perfect 10 may be in this one for a settlement rather than an outright victory. After all, with the lawsuit math adding up to around $188 million in infringement claims (1256 listed infringements times $150,000), "The magazine publisher will probably be happy to settle for a tiny fraction of that."
The complaint can be read here.
