Court Denies Preliminary Injunction in Perfect 10 v. RapidShare

LOS ANGELES—A U.S. District Court judge has denied a request for preliminary injunction in Perfect 10 v. RapidShare, a lawsuit filed late last year by the model site against the Germany-based file hosting site that alleges copyright infringement.

In her 15-page decision, District Judge Marilyn L. Huff did not deny that direct infringement of Perfect images was occurring. Neither did Rapidshare, for that matter. But the service claimed that Perfect 10 never bothered to inform it about where the infringed images were located, and because RapidShare has no search function, it was unable to find the images in order to remove them.

“RapidShare cannot locate and delete files where the only information provided is [an] image,” claimed the defendants, who stated that their Abuse Department had found and taken down “certain files whose download links were identified on the screen shots that [Perfect 10 owner Norm] Zada attached to his declaration.”

Huff ruled that Perfect 10 had thus failed to show that RapidShare had failed to take simple measures to “prevent further damages to plaintiff’s copyrighted works. Rather, the evidence suggests that RapidShare is using information provided by plaintiff to locate and remove infringing materials, and is also taking independent steps to identify, locate, and remove infringing files.”

Huff also found that RapidShare was not guilty of inducing infringing activity, despite Perfect 10’s claim that the service’s affiliate program was an inherent inducement because people who infringed got paid.

“However,” wrote Huff, “RapidShare contends that “it terminated its cash rewards program well before it filed its Jurisdictional Motions because it became concerned that program was being used by some users to promote infringement.” RapidShare also convinced the judge that it strove to eliminate infringing uses.

As noted by Ars Technica, in failing to prove its claims, Perfect 10 is at least partly to blame for its failure to make a strong enough case that the judge thought it would prevail in a trial. Further, Huff noted that Perfect 10 waited four years to file its lawsuit against RapidShare, fact that, combined with its other failures, doomed its request.

“Considering plaintiff’s apparent lack of interest in self-help measures and its delay in bringing this action, the Court concludes that, at present, the equities do not weigh in favor of granting injunctive relief.”

Perfect 10 is still expected to forge ahead with the suit.

A copy of the ruling is available here.