Adult Web site and magazine Perfect 10 will appeal within 30 days an August ruling that held Visa International and MasterCard International were not liable for copyright infringement by Web sites using Perfect 10 imagery without the company's permission.
Perfect 10 attorney Howard King told AVNOnline.com the company's amended complaint – which U.S. District Judge James Ware allowed in his original August 9 ruling – was likewise rejected by Ware, and on the same grounds: that Visa and MC could not be held responsible for infringement actions committed by cardholders.
"The judge pretty much said from the bench, 'Why didn't you just go and appeal the August ruling rather than come back again, because it's a pure issue of law and I'd rather have the [Ninth Circuit Court of Appeals] rule on that'," King said. "We thought that, by showing him additional facts to demonstrate Visa and MasterCard control over these infringing Web sites that he might reconsider his August decision. But he did not."
Perfect 10 has maintained that Visa and MasterCard are in a different position than peer-to-peer networks Grokster and Morpheus, for whom a federal district court and a Ninth Circuit Court panel have ruled could not be held as infringers because they have no apparatus to store copyright material themselves, as opposed to their users exchanging copyright materials in file swaps.
"There were several things [Visa and MC] didn't do that they would have had to do under Grokster to demonstrate [no] control," King said. "They enter into direct contracts with stolen content Web sites and they have the right not only to terminate the contracts but to edit the sites, in order to ensure they comply with the law. We believe that is a significant difference from Grokster."
Ware ruled in August that Perfect 10 did "not provide any facts supporting an allegation of direct copyright infringement against [Visa and MasterCard]. Instead, [Perfect 10] alleges that the Stolen Content Web sites engaged in direct infringement and [Visa and MasterCard] are liable for contributory and vicarious copyright infringement.”
The judge also rejected Perfect 10's argument that third parties contributed to and controlled any infringing activity materially by offering credit processing services to the infringers in question, because Perfect 10 offered no proof Visa and MC explicitly induced any of their credit or processing clients to infringe any Perfect 10 trademarks or materials.
"In fact, the language of the complaint indicates that [Perfect 10] believed the standard for contributory trademark infringement to be the same as that for contributory copyright infringement,” Ware ruled. “…Although the complaint contains the allegation that Defendants ‘are knowingly inducing’ the alleged infringing conduct… there are no facts presented in the complaint that support such an allegation."
Andrew Bridges, an attorney who represents MasterCard in the Perfect 10 litigation, was unavailable for comment before this story was posted. But he had said recently that Perfect 10 wanted to slap "a commercial blockade" against anyone the company merely accused of infringement.
