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?