LOS ANGELES—On May 2, the Ninth Circuit U.S. Court of Appeals denied a rehearing to Perfect 10, the magazine/website that has made a cottage industry out of suing various websites like Amazon, Google, Visa/Mastercard, CCBill and even Microsoft for alleged copyright infringement (and leaving at least one of those companies' attorneys waiting for court-ordered payment of their costs and fees)—and now, the company that many have labeled a "copyright troll" is attempting to take its infringement case to the highest court in the land.
On August 31, Perfect 10 filed its petition for writ of certiorari to the U.S. Supreme Court, asking the justices to overturn the Ninth Circuit's ruling from last January which found that Giganews, Inc., a Texas corporation that serves as an ISP conduit for Usenet, and its affiliate, Livewire Services, Inc., based in Nevada, which offers access to Usenet through Giganews servers, were not responsible for whatever Perfect 10 images (most often thumbnails of photos and magazine covers) that Giganews' users posted to the Usenet newsgroups.
That decision was largely based on Section 230 of the Digital Millennium Copyright Act, which immunizes ISPs from the infringements of their users, as long as the ISP takes no active part in editing or otherwise altering the postings. Section 230 is currently under attack from several sources, not the least of which is Congress, some of whose members seek to hold websites like Backpage.com responsible for ads offering sexual services that involve underage participants.
Perfect 10's most recent line of attack involves comparing internet users' posting of its material to the Supreme Court's 2014 decision which effectively shut down Aereo, which essentially acted as a digital video recorder for over-the-air TV shows, allowing subscribers to view current and archived entire mainstream TV shows on their computers. The high court deemed Aereo's services to be copyright breaches.
"Just as Aereo attempted to sidestep liability for its infringement of television broadcasters' public performance rights through a 'Rube Goldberg-like contrivance,' specifically 'over-engineered' to 'take advantage of a perceived loophole' in the copyright act," Perfect 10's attorneys argue in the cert petition, "the Ninth Circuit rule invites would-be internet pirates to evade direct liability by programming computers to engage in 'automatic'—and therefore immune—copyright infringement for them."
Of course, the "automation" of which Perfect 10 speaks is simply the ISP keeping its hands off of its users' postings—exactly the method of avoiding copyright infringement liability prescribed in Section 230. Moreover, Aereo's offense consisted of entire television shows, generally a half-hour or more of content, where Perfect 10 has generally been targeting thumbnail versions of its materials.
How the Supreme Court will view Perfect 10's argument is currently unknown, but in considering the case, it may take into consideration the fact that the three-judge panel of the Ninth Circuit described Perfect 10 as being "in the business of litigation."
