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Perfect 10 screwed by Google?

Perfect 10, an adult website, sued Google last November for infringing upon its copyrighted material, its trademarks and, to get bang for their bucks, unfair competition. The original complaint was covered by Wendy Seltzer.

Now, Perfect 10 has requested that Google is prevented from showing any of their copyrighted images. Their argument is that, through advertisements accompanying these images, Google profits from their display even though it is perceived to be a free search engine:

Perfect 10 sued Google in November of 2004. It says that Google is displaying hundreds of thousands of adult images, “from the most tame to the most exceedingly explicit, to draw massive traffic to its website, which it is converting into hundreds of millions of dollars of advertising revenue.”

Perfect 10 claims that under the guise of being a search engine, Google is displaying, free of charge, thousands of copies of the best images from Perfect 10, Playboy, nude scenes from major movies, nude images of supermodels, as well as extremely explicit images of all kinds.

Dr. Norm Zada, the founder of Perfect 10, argues that the business model of Google, whereby images can be displayed and downloaded for free without accessing the original website, reduces the profitability of pay-per-view pornographic websites. Furthermore, as the majority of searches are for pornographic images, this represents a misappropriation of intellectual property, since Google depends upon lust for its profits, at the expense of companies like Perfect 10.

Overture’s Key Selector Tool indicates that most searches on the internet are sex-related,” says Zada. “Google’s extraordinary gain in market cap from nothing a few years ago to close to eighty billion dollars, is more due to their massive misappropriation of intellectual property than anything else,” says Zada.

This court case represents an attack upon the business model of Google. It also demonstrates the unresolved tensions between the perceptions of intellectual property that pervade new and old media. Zada explains why his injunction is beneficial to other traditional media outlets:

Any website publisher can sign up for Google AdSense. It’s an easy way for publishers to display Google ads – those being paid for by its AdWords customers – on their content pages. AdWords customers pay Google and Google pays a commission to AdSense publishers. So Google can maximise its revenues by maximising the traffic that it sends to AdSense affiliates. Perfect 10 does not suggest that Google is weighting its search results in favour of AdSense-supported sites; but it does argue that Google profits directly from the popularity of porn, and its particular concern is that it profits from Perfect 10′s porn that has been stolen by others.

Zada believes that the outcome of Perfect 10′s motion for preliminary injunction should have a major impact not only on Perfect 10, but also on traditional media outlets which are losing the ad revenue war to search engines, in part because of all the nude and semi-nude images search engines offer for free.

Right now, he says, consumers who want to view a nude scene involving Halle Berry, Nicole Kidman, or other Hollywood beauties, can view that scene for free by visiting a search engine without purchasing the DVD. “If all an infringer needs to avoid liability is to provide some sort of a ‘search function,’ that will be the end of intellectual property in this country,” says Zada.

Is this a principled defence of intellectual property or an opportunistic front in the war against the new media?

34 comments to Perfect 10 screwed by Google?

  • Julian Morrison

    Sounds very much to me like water-sellers complaining that someone has invented an aqueduct.

  • All you have to do is put a little piece of HTML code in your page on the search engine robots will ignore it.

    Perfect 10 can’t be bothererd to insert one line of code but it has the time and resources to sue Google?

    This is an attempted shakedown, nothing more.

  • GCooper

    Philip Chaston writes:

    “Is this a principled defence of intellectual property or an opportunistic front in the war against the new media?”

    Whatever else it is, it’s a small blow against a very worrying organisation.

    Never mind ‘the State’ – Google isn’t your friend either, if you have any concerns about privacy and the promotion of statist causes.

  • AWolf

    Perfect 10 is primarily a print magazine. Their precedent that they are following up on is from when they sued Adult Check in 2002 because AC’s affiliates were using scanned images. The court accepted AC’s claim that the affiliates were independent but found AC liable because a significant portion of their revenue was generated from the activities of their affiliates. They view it as the digital equivalent of receiving stolen goods. Since then P10 has been attacking any one that might be profiting from their copyrights because it is a more effective tactic than trying to find the actual copyright violators. For example you could scan in the images from a magazine and post them on a blogspot site or other free web service. The web service is much easier to find than whom ever it was that posted the pictures.

    This is why mainstream groups need to pay attention to what is happening with the porn industry and support them in civil actions that may set precedents that may have far reaching consequences. You might want to Google “Acacia” to see what is happening with streaming media and it all started with suing porn sites.

  • Julian Morrison

    GCooper: horsefeathers. What has Google ever done to harm you?

  • All you have to do is put a little piece of HTML code in your page on the search engine robots will ignore it.

    Maybe it’s just me, but I feel really irked when someone tells ME to do something to stop SOMEONE ELSE from doing something illegal to me.

  • Maybe it’s just me, but I feel really irked when someone tells ME to do something to stop SOMEONE ELSE from doing something illegal to me.

    In regards to the Google scenario, I think shutting down or neutering search engines due to the above alone would have a massively negative net effect on development in many, many fields of human endeavour. If the impetus was on search engines to actively find out which webmasters want their websites to be sought out by said search engines, Google and others would, at best, be infinitely less useful and at worst non-viable, to the practical detriment of nearly everyone. No, bugger it, *everyone*. I’m happy to put up with a tiny trade off – that I have to take action to withdraw my site from Google’s scan, rather than the arguably more “fair” vice versa – to ensure I can continue to use Google in its current, highly effective incarnation.

    I agree with KipEsquire. This isn’t some high-minded intellectual property debate, it’s a shakedown of Google.

  • dof

    Jason has a point:

    If we want opt-in to be the default for, say, spam, why shouldn’t it be the default for allowing spidering?

    Clearly, if some people want their site to be indexed by search engines, they should be the ones putting effort in writing a robots.txt file, end not the other way round.

  • dof

    Bummer. That should read “a condition”, not “default”

  • Julian Taylor

    Maybe it’s just me, but I feel really irked when someone tells ME to do something to stop SOMEONE ELSE from doing something illegal to me.

    Presumably then you don’t have an antivirus programme, you let popups onto your screen and you have all firewalls switched off? Surely common sense dictates that if putting a small amount of html code into a page, at minimal cost, prevents the expenditure of thousands in lawyers fees then that is a good thing?

  • J

    Jason – except Google isn’t doing anything illegal (yet). There is only a grey area between copying material for mechanical reasons and copying it for profit reasons. For instance, almost every large ISP copies hundreds of gigabytes of copyrighted material from the web, which are then stored in proxy servers. This is done to reduce bandwidth load on certain lines, and to speed up service. But ISP’s then charge a premium for providing this faster service – so are they too profiting from the illegal copying of other people’s material?

    In fact, hey every time I view any web page, my browser makes a local copy of the entire contents on that page – so are browser manufacturers like Microsoft making money from unauthorised copying of copyright material?

    Are they hell. If Perfect 10 don’t like the way the Internet was engingeered, they can stick to printing presses and shut the hell up.

  • Anonymous Coward

    The whole concept of intellectual property is bullshit. It’s a state granted, state enforced, monopoly privilege that leads to accumulation of capital and power and which distorts the true free market in favour of larger organisations such as multi-national corporations. In the modern age it is an immoral imposition of scarcity, where none really exists. It may be a key component of capitalism, but it has no place in a truly free society.

  • Midwesterner

    “The whole concept of intellectual property is bullshit.”

    Ever had a thought worth protecting?

  • Ted Schuerzinger

    Anonymous Coward wrote:

    The whole concept of intellectual property is bullshit.

    Midwesterner responded:

    Ever had a thought worth protecting?

    What do you think? :-p

  • DSmith

    The notion of “original thought” is highly overrated. Thoughts are both cheap, and common – even good ones.

  • Midwesterner

    Then why does almost all progress come from countries that protect them?

  • Midwesterner

    Whenever someone pronounces a property right unwarranted, it generally means they think they are entitled to get it for free.

    A. Coward is just an intellectual socialist.

  • Julian Taylor

    The notion of “original thought” is highly overrated. Thoughts are both cheap, and common – even good ones.

    Maybe you would be better off reading The Guardian’s website, the Labour Party’s one or even Our Little Tony’s “what I did on my holidays at Uncle Cliff’s villa in Barbados” website. Lots of unoriginal thought on there and plenty of cheap, plagiarised and common thoughts as well.

    I am at a complete loss for words that anyone could have written such a thing, let alone on this blog.

  • Freefire

    why does almost all progress come from countries that protect them?

    because IP tends to accompany progress, but that doesn’t mean it necessarily assists it. If you look at the history of innovation it seems to be the case that overall IP discourages innovation more than it encourages it.

    But hey when your IP arguments don’t work anymore you can always try something else:

    “Boulton and Watt have strained every nerve to get a bill passed in the House of Commons to stop these engines, saying the lives of the public are endangered.” Richard Trevithick, inventor of the locomotive

  • Midwesterner

    “because IP tends to accompany progress, but that doesn’t mean it necessarily assists it”

    One might as well say that “knowledge tends to accompany education, but that doesn’t mean it necessarily assists it”. Intellectual achievements (property) and progress are inextricable.

    Unlike A. Coward and DSmith, I don’t think you’re attempting to deny the existence of intellectual property. You seem to be saying that it should all be in the public domain, the commons, collectively held.

    The only strong argument I’ve seen in favor of this position is that “somebody would have thought of it sooner or later, anyway.” In some cases, true. Although sometimes it can mean WAY later. Centuries later. The difficulty of determining how much sooner or later it would have been, should not be construed to deny the merit of the original inventor. (Sooner or later, would somebody have written ‘Beethovens’ Fifth?)

    A big confuser of our present situation is that our patent system has been hijacked by big money. The primary way this has been done was by eliminating the distinction between discovery and invention and engineering and invention. Discovering a gene does not equate to inventing a gene any more than discovering B flat warrants a copyright.

    The founders of the US established intellectual property protection for the sole purpose of accelerating the process of invention. People in favor of treating inventions as collective, community property continuously “prove” that IP protection is counter productive. I guess that’s why we have the least progress and advancement and fewest original ideas here in the US. ;-)

  • Sigivald

    dof: I think you’ll find that by default people do want their websites indexed.

    Indeed, this lawsuit is not by someone whose website was indexed and searchable when they didn’t want it to be; it’s about someone suing Google for Google indexing other people’s sites that had violation of the first party’s copyright.

    I, personally, sincerely hope this is thrown out with prejudice.

    Perfect10′s complain appears to be that Google is being an effective search engine and that other people (not Google, that is) that are illegally infringing on Perfect10′s copyright are being found via Google, thus Google must be liable for something, somehow, because Google sells ads.

    Nevermind that Perfect10 isn’t even alleging that any of the ad-sellers are violating its copyright, or that Google is. They just want Google to somehow block display of their images, regardless of the fact that Google has no way to know what images are theirs and which are in violation of copyright, rather than fair use (for, say, an academic paper on pornography, or public court records where the image was used as evidence).

    Wankers.

  • Freefire

    Intellectual achievements and progress are indeed inextricable. But intellectual achievements are not necessarily property.

    You say that the founders of the US established IP protection “for the sole purpose of accelerating the progress of invention”. So it wasn’t on the basis of protecting natural rights then?

    I do deny the existence of intellectual property – and the basis on which I deny it is that I own my own body. That means no-one can have any property whatsoever in something that is in my mind other than me. Someone else may have property in something I create which is separate from my body, but they cannot have property in any part of what is in my mind, whatever it is and however it got there and whoever created it in the first place. Ownership of one’s own body is a more fundamental right than ownership of anything that one might create which can exist outside one’s own body.

  • I buy a gun to defend my home and myself.

    I create encryption and certification to defend my website & data.

    Defend yourself or nobody else will.

  • Midwesterner

    Freefire

    Keyword “necessarily”. True.

    “So it wasn’t on the basis of protecting natural rights then?” Not in large part.

    It seems to be based in large part on Locke’s labor theory of value. This is from http://faculty.mckendree.edu/scholars/summer2005/weder.htm(Link)

    Historical Background
    On April 10, 1790 when President George Washington signed the bill which became known as the United States Patent Act of 1790 a monumental step was taken. (This act was later repealed and replaced by another, longer act, the U.S. Patent Act of 1793.)(4) The Lockean sentiment of the Acts is unmistakable. To say the new U.S. patent system was unique would be a gross understatement. For the first time in history the intrinsic right of an inventor to profit from his invention was recognized by law. Previously, privileges granted to an inventor were dependent upon the prerogative of a monarch or upon a special act of a legislature. The Constitutional basis for the federal patent and copyright systems can be found in Article 1, Section 8, clause 8 which states:

    Congress shall have power. . . to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.(5)”

    It seems as though the framers recognized the vital role innovation plays in driving economic growth over 175 years before Solow’s theory of endogenous growth. Equal measures of Locke’s labor theory of value and the Scriptural principles which tell us “[t]hou shalt not muzzle the ox that treadeth out the corn. . . the workmen is worthy of his hire” (I Tim 5:18)(6) and “[t]he husbandman that laboureth must be the first partaker of the fruits” (II Tim 2:6)(6) can be seen in the writings of those involved in the establishment of the U.S. PTO. Somewhat later, in an 1824 speech to Congress, Daniel Webster, in his ever-eloquent style, explained the value of invention to the nation’s economic well being. He told the assembly, “invention is the fruit of a man’s brain, that industries grow in direct proportion to invention, and that therefore the government must aid in progress by fostering the inventive genius of its citizens.”(4)”

    You (Freefire) said

    “I own my own body. That means no-one can have any property whatsoever in something that is in my mind other than me”

    Yes! True! This is why I get so upset when people claim they can patent genetic discoveries! My genes are MINE! If you want to manipulate a new gene and sell it to me, fine. But you mustn’t try to take from me the ownership of my own genes.

    The deciding principle for me is whether or not you use your knowledge of my protected property to make money from my effort and labor. Read and understand what I do. Even make one for yourself. But don’t take my effort and use it to take away the income that I would derive from it. The work of invention is like any other investment.

  • Tedd McHenry

    Freefire:

    Why aren’t original ideas, once expressed in some form, property under the principle of original appropriation, the same as works of art? They are original creations made from nature-given goods (i.e. the means by which they are put into communicable form, whether in speech, writing, binary code, or whatever).

    Or are you arguing against original appropriation? I agree that self-ownership supercedes original appropriation, but it would be a false choice to say that I have to choose between the two. They are both legitimate sources of ownership, so far as I can see.

  • Kristopher

    Someone at Perfect 10 failed to alter the permissions on their webpages and content from the default, and is now whining about it.

    UNIX will do exactly what you tell it to. If a file has 744 as it’s permissions setting, ANYONE can read said file.

    Putting a file on a webserver with that permission is exactly like putting up a sign in your front yard.

    Perfect 10 is complaining because google walked past on the street, took a picture of that sign, and posted it, with directions for how to get to that sign to view it.

  • Julian Morrison

    If we want opt-in to be the default for, say, spam, why shouldn’t it be the default for allowing spidering?

    Because unlike email, the web is deliberately put out there for all and sundry to view. If they happen to peruse it with a program rather than eyes, there’s no reason you ought to be specially consulted – aside from courtesy, which is the reason that search engines support “opt out”.

  • Midwesterner

    Sigivald said “other people (not Google, that is) that are illegally infringing on Perfect10′s copyright are being found via Google, thus Google must be liable for something, somehow, because Google sells ads.”

    In the US, at least, this goes by the nickname “deep pockets”. It’s based on the proven principle that you can’t get money out of a rock. So instead of sueing a difficult to find or financial limited violator, you go after any one or business nearby that has “deep pockets”, ie, money.

    We often see it in traffic accidents where one party will be found 20% at fault and another 80% at fault (for a 3rd parties injury) but the 20% party doesn’t have enough money to settle, so guess who makes up the difference.

    So far they haven’t assigned $ liability to someone with no fault, but why not? It makes almosts as much sense.

  • Midwesterner

    I said that backwards. You can reverse the 80 and 20 and it would still be true.

  • Julian Taylor

    I am quite sure that Perfect 10 are fully aware of what a robot.txt(Link) file is. Judging by their previous attempts it looks very much as though Perfect 10 specialise in generating publicity for their rag through threatening organisations like Amazon(Link) and Google. A list of their actions so far is available here(Link).

    May I suggest we deprive this company of the publicity oxygen it so obviously craves?

  • Tim

    The problem is that without copyright, who’s going to make a $50 million movie? What drug company will spend millions testing a drug without a patent?

    Spend millions, make movie, show movie, movie gets copied across the globe. Where’s the profit?

    On the other hand, copyright is now too long. It goes against the original idea – to encourage creationfor the good of society when people have copyright for 75+ years. This is supposed to be a temporary monopoly to encourage creation, the deal being that some time after, it becomes public domain, and we can all enjoy it, and not only that, to create derivative works. The deal has become one-sided. It isn’t about encouraging creation, as there are plenty of movies and songs now that are still copyrighted years after the death of the creator.

  • Freefire

    Tedd: No I am not arguing against original appropriation – only against original appropriation of ideas. Once expressed by physical means (including digital), that physical thing is owned by whoever produced it (i.e. not necessarily the original creator of the idea but someone who copies it) yet the original creator of the idea may be considered to own that idea – that’s the problem. And it’s not the only problem e.g. if ideas are originally appropriated you are going to have difficulty explaining why IP should not be permanent (in practice IP never is permanent).

    Midwesterner: What I deny is objective/natural ownership of intellectual creations. I do accept there may be a moral claim against how the creation is used and I also leave it an open question whether it may be just for the common law to grant injunctions on particular usage on the basis of redress for loss. This of course may itself be considered as granting of a limited property right, but in this case not the recognition of an existing natural one. (As for the other alternative possibility – property rights granted by government-made law – I don’t consider that as justified)

    Of course it may seem like semantics to deny objectively/naturally existing IP rights yet accept possibility of a limited property right being granted by common law as just remedy for loss to a creator but the question of what is objectively/naturally owned (and also the question of how the law operates) is a fundamentally important one with massive implications. And if self-ownership is the basis of our rights, we need to know exactly what it means.

  • Midwesterner

    “not the recognition of an existing natural one”

    Freefire, I think we’re probably a lot closer than I first thought. Still a possible difference though.

    As I see it, a theoretical natural property right exists for the inventor lasting from invention until someone else would have thought of it. At that point, end of exclusivity.

    Good theory, utterly impossible. Hense, the system we have now. It seems to be working better than anything else ever has and so I’m loathe to change it without very sound and testable principles.

    I’m always open to ideas.

  • Nate

    Tim, absolutely. Copyright is absolutely absurd here in the US. I think it’s now something like 90 years. egad!

    As for the Perfect 10 lawsuit…it’s absolutely ridiculous. The world wide web is more or less a virtual public space, in some sense like a giant distributed shopping mall or apartment complex. It’s relatively easy to protect data from casual observers, most web servers have basic techniques built into them.

    If a person were to wander around a gigantic shopping mall and build a map of it with pictures, etc of the shops and their front windows (not the stuff inside, per se) — and then profit from the construction of the map…would this person be liable for economic damages to the stores? Google and related technologies are an absolute boon to the web and add an incredible amount of value to the e-commerce taking place inside of its virtual space.

    Somebody else mentioned “deep pockets” which is what this case is exactly.