PHOENIX — The long-running copyright infringement case between the AMA Multimedia against the companies that operate and are affiliated with Porn.com received another lifeline on Friday.
A federal appeals court reversed a previous decision made by U.S. Judge David G. Campbell that would have dismissed its case on jurisdictional grounds.
Friday’s ruling focused on whether Porn.com’s alleged conduct was in furtherance of an advertising deal between AMA and the GIM Corp., which brokered AMA promotional videos that appeared on Porn.com and purportedly had no relation to charges of infringement.
AMA, which filed its infringement suit in 2017, alleged that Porn.com and its defendants engaged in a practice called “scraping,” by which entities aggregate on their own, user information and videos from other websites.
The operator of Porn.com was sued after AMA alleged that 64 of its copyrighted works were found on more than 110 separate Porn.com-affiliated URLs. AMA has more than 20 porn membership sites, including Passion-HD.com, Tiny4K.com and PornPros.com.
Defendant Porn.com, based in Seychelles, was alleged to have displayed AMA’s movies over separate Porn.com URLs. Porn.com claimed that the poached videos were uploaded by third-party users.
In addition to Porn.com, other defendants include Cyberweb Ltd. (formerly MXN Ltd.), based in Barbados, and Netmedia Services Inc., based in Canada., along with TrafficForce.com and operator Dave Koonar.
In the most recent round at the 9th U.S. Circuit Court of Appeals, AMA appealed Campbell’s dismissal of the case because its ad deal with GIM Corp. had nothing to do with videos that allegedly appeared on Porn.com with its watermark erased.
In Friday’s ruling, “the district court abused its discretion in concluding defendants were ‘transaction participants’ and could benefit from the forum selection clause.”
“Here, the district court incorrectly applied the law,” the 9th Circuit panel said in Friday’s ruling. “The district court correctly identified the legal rule: Defendants, as nonparties, could enforce the forum selection clause if their alleged conduct was closely related to the contractual relationship between AMA and GIM Corp.
“But the district court did not apply this rule,” the 9th Circuit said. “It focused solely on the relationship between defendants and the content partner revenue sharing agreement, instead of focusing on defendants’ [allegedly infringing] conduct.
“The district court should have analyzed whether defendants’ alleged conduct was ‘closely related’ to the content partner revenue sharing agreement — the contractual relationship between AMA and GIM. Only then could defendants have standing to enforce the forum selection clause …,” the 9th Circuit said.
“Because the district court did not do so, it incorrectly applied the law and abused its discretion. We do not reach defendants’ alternative grounds for enforcing the forum selection clause, including those based on an implied license, agency relationships, or third-party beneficiary status.
“Defendants may pursue those theories, as well as their ‘transaction participants’ theory, on remand.”
AVN readers can check out the 9th Circuit's oral arguments made in the case last month here.
