Supreme Court Rejects Perfect 10's Cert Petition in Giganews Case

WASHINGTON, D.C.—The long-running legal battle between content owner Perfect 10, which over the past few years has filed more than a dozen lawsuits against individuals and companies it claimed illegally copied (or facilitated the copying of) its products, and internet service provider Giganews has come to its end, with the U.S. Supreme Court having denied Perfect 10's petition for certiorari on December 4. The denial means that Perfect 10's loss first at the district court level, and later in the Ninth Circuit Court of Appeals, will stand and the company will be forced to pay over $5.6 million in attorney fees and costs to Giganews, with interest charges mounting daily.

Perfect 10 and its owner, Norm Zada, have been working the "copyright infringement" angle for more than 13 years, having sued (and lost to) everyone from Visa and Mastercard to Microsoft to Google to Amazon to Tumblr to CCBill to several others for allegedly contributing to the infringement of Perfect 10's copyrighted images, usually because a thumbnail of the image appeared on a defendant's site, or on a search engine controlled by a defendant. The basis of its 2011 suit against Giganews, which is the ISP conduit for Usenet, was that Usenet, which is basically the modern equivalent of the old "bulletin board system" (BBS) where members post articles, photos and comments for their fellow members, allowed some of those members to post images that were owned by Perfect 10. Giganews had argued that as an ISP, it was not required under the Digital Millennium Copyright Act to police the content posted by Usenet's users—a fact that has been adjudicated several times over the years and found to be legitimate policy.

As recently as this past January, the Ninth Circuit Court of Appeals rejected Perfect 10's most recent appeal in the case by ruling that companies like Giganews can only be found liable for infringement if their own conduct actually brings about the illegal infringement activity—something Perfect 10 had failed to prove over the course of the litigation.

"The evidence before us shows only that Giganews’ actions were akin to passively storing material at the direction of users in order to make that material available to other users upon request, or automatically copying, storing and transmitting materials upon instigation by others," wrote U.S. Circuit Judge Dorothy W. Nelson for the three-judge Ninth Circuit panel which last rejected Perfect 10's appeal from its district court loss.

In a statement given to reporters on Monday after news of the cert rejection spread, Giganews said it was pleased that the high court had found Perfect 10's arguments to be "meritless," but that the company "will not rest" until it receives the $5.6 million award granted to the company by the district court.

"For us, the legal fight against Perfect 10 is not over," Giganews wrote.