Hmm.... It's more complicated than that. I'm going to put general stuff up, and then way too much information after. Note: I am not a lawyer.
In some places, citing Perfect 10 is fine. For example: distinguishing between a 'transitory transmission' and something fixed. So, the earlier ones are saying nothing more than "the made a web page" and that's "static enough". But the place where Perfect 10 would seem to be a really stupid thing for BWP to cite is here:
In the event that the Photograph(s) were hyperlinked into the Website(s), and
thereby not stored directly on the Defendant(s) servers, Defendant(s) are liable as contributory
infringers since they had actual and/or constructive knowledge of another's infringing conduct
and induced, caused and/or materially contributed to that conduct. (See e.g., Perfect 10, Inc. v.
Amazon.com, Inc., 508 F.3d. 1146, 1171 [9th Cir. 2007]; Metro-Goldwyn-Mayer Studios Inc. v.
Grokster, Ltd., 545 U.S. 913, 929-30 [2005]; A&M Records, Inc. v. Napster, Inc. 239 F.3d 1004,
1019 [9th Cir. 2001]; Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 [1984]).Perfect 10 v. Amazon does block the possibility of hyperlink being
direct infringement.
Note that BWP doesn't seem to be trying to get them for
direct infringement, but rather
contributory infringement. This is more complicated. To me, the key problem with BWP is they don't have any theory about how the contributory infringement occurred. That is: they need to suggest some mechanism whereby the people hosting the site
induced a site visitor to copy the images and the need to show
quite a bit more.
But this claim by BWP is important:
For example, Defendant(s) have caused enabled, facilitated and materially
contributed to the infringement complained of herein by, providing the tools and instruction for
infringement via their Website(s) and have directly and indirectly promoted the infringement and
Case 1:14-cv-00147-LY Document 1 Filed 02/18/14 Page 5 of 8
refused to exercise their ability to stop the infringement made possible by their distributionThat is: BWP seems to be claiming that
in addition to hyperlinking "Ain t It Cool, Inc. and Mr. Harry Jay Know" is providing tools to encourage 3rd party visitors to copy images. Note that Google does not provide these sorts of tools and if you read Perfect 10
this fact would matter. I'll quote enough to drill down and you can see what things don't cause contributory infringement (under Perfect 10) and what
might.
The issue of contributory infringement is discussed ad naseum in the section "Secondary Liability for Copyright Infringement" of Perfect 10. Lets look at some of what the 9th wrote:
[17] We now turn to the district court’s ruling that Google
is unlikely to be secondarily liable for its in-line linking to
infringing full-size images under the doctrines of contributory
and vicarious infringement.10 The district court ruled that Perfect
10 did not have a likelihood of proving success on the
merits of either its contributory infringement or vicarious
infringement claims with respect to the full-size images. See
Perfect 10, 416 F. Supp. 2d at 856, 858. In reviewing the district
court’s conclusions, we are guided by the Supreme
Court’s recent interpretation of secondary liability, namely:
“- ne infringes contributorily by intentionally inducing or
encouraging direct infringement, and infringes vicariously by
profiting from direct infringement while declining to exercise
a right to stop or limit it.” Grokster, 545 U.S. at 930 (internal
citations omitted).
That is: the contributory infringement could arise from hyperlinking if the fact of these hyperlinks induced someone other than Google using Google search to find the image and download the image and store it on their computer.
Continuuing.
Direct Infringement by Third Parties. As a threshold matter, before we examine Perfect 10’s claims that Google is secondarily liable, Perfect 10 must establish that there has been direct infringement by third parties. See Napster, 239 F.3d at 1013 n.2 (“Secondary liability for copyright infringement
does not exist in the absence of direct infringement by a third party.”
Note however, for Google to be guilty of this sort of 2ndary infringement, one would have to show that someone visited google, and owing to that visit, that third party copied the image in a way that constituted a copyright violation-- and that in some way this was caused by Google.
Perfect 10 alleged that happened. The courts observes.
Perfect 10 alleges that third parties directly infringed its images in three ways.
So... we now look at the 3 ways: Two of these will mostly go away. But one will remain-- and it matters in this BWP case.
First, Perfect 10 claims that third-party
websites directly infringed its copyright by reproducing, displaying,
and distributing unauthorized copies of Perfect 10’s
images. Google does not dispute this claim on appeal.
First, Perfect 10 claims that third-party
websites directly infringed its copyright by reproducing, displaying,
and distributing unauthorized copies of Perfect 10’s
images. Google does not dispute this claim on appeal.
Spoiler: This is the one that does not go away.
[18] Second, Perfect 10 claims that individual users of
Google’s search engine directly infringed Perfect 10’s copyrights
by storing full-size infringing images on their computers.
We agree with the district court’s conclusion that Perfect
10 failed to provide sufficient evidence to support this claim.
See Perfect 10, 416 F. Supp. 2d at 852. There is no evidence
in the record directly establishing that users of Google’s
search engine have stored infringing images on their computers,
and the district court did not err in declining to infer the
existence of such evidence.
This one goes away for lack of evidence-- not because it can never happen.
[19] Finally, Perfect 10 contends that users who link to
infringing websites automatically make “cache” copies of
full-size images and thereby directly infringe Perfect 10’s
reproduction right. The district court rejected this argument,
holding that any such reproduction was likely a “fair use.” Id.
at 852 n.17. The district court reasoned that “[l]ocal caching
by the browsers of individual users is noncommercial, transformative,
and no more than necessary to achieve the objectives
of decreasing network latency and minimizing
unnecessary bandwidth usage (essential to the nternet). It
has a minimal impact on the potential market for the original
work . . . .” Id. We agree; even assuming such automatic
copying could constitute direct infringement, it is a fair use in
this context. The copying function performed automatically
by a user’s computer to assist in accessing the Internet is a
transformative use. Moreover, as noted by the district court
a cache copies no more than is necessary to assist the user in
Internet use. It is designed to enhance an individual’s computer
use, not to supersede the copyright holders’ exploitation
of their works. Such automatic background copying has no
more than a minimal effect on Perfect 10’s rights, but a considerable
public benefit. Because the four fair use factors
weigh in favor of concluding that cache copying constitutes
a fair use, Google has established a likelihood of success on
this issue. Accordingly, Perfect 10 has not carried its burden
of showing that users’ cache copies of Perfect 10’s full-size
images constitute direct infringement.
Therefore, we must assess Perfect 10’s arguments that
Google is secondarily liable in light of the direct infringement
that is undisputed by the parties: third-party websites’ reproducing,
displaying, and distributing unauthorized copies of
Perfect 10’s images on the Internet. Id. at 852.
Note the third way "goes away". It is not copyright infringement under Perfect 10.
So: Perfect 10's claims of copying in three ways has been whittled down to 1 way (which will be addressed). But this is where someone has to be careful. Google is free and clear on way 2 not because it's "impossible" but because
there is no evidence any 3rd party downloaded the image and stored it on their computer in a way that infringes, and the judges were not going to 'infer' that anyone did store it in that way. Possibly, if Perfect 10 had found people who'd downloaded and stored and brought them to court, Google would have been guilty of "contributory infringement". The things is: Perfect 10 has to show evidence of this. (And in that case, they have to get evidence those people
infringed-- which might be even more difficulty.)
So, now we move onto the claim that Google's hotlinking induced infringement because people who ran websites found images on google search copied them and displayed those on their web sites. Google doesn't dispute people do this.
On to more quoting
In order for Perfect 10 to show it will likely succeed in its
contributory liability claim against Google, it must establish
that Google’s activities meet the definition of contributory liability
recently enunciated in Grokster. Within the general rule
that “- ne infringes contributorily by intentionally inducing
or encouraging direct infringement,” Grokster, 545 U.S. at
930, the Court has defined two categories of contributory liability:
“Liability under our jurisprudence may be predicated
on actively encouraging (or inducing) infringement through
specific acts (as the Court’s opinion develops) or on distributing
a product distributees use to infringe copyrights, if the
product is not capable of ‘substantial’ or ‘commercially significant’
noninfringing uses.” Id. at 942 (Ginsburg, J., concurring)
(quoting Sony, 464 U.S. at 442); see also id. at 936-37.
So there are two categories of contributing infringement. The court has to see if Google is guilty of either one. The look at the 2nd category first:
Looking at the second category of liability identified by the
Supreme Court (distributing products), Google relies on Sony,
464 U.S. at 442, to argue that it cannot be held liable for con-tributory infringement because liability does not arise from the mere sale of a product (even with knowledge that consumers
would use the product to infringe) if the product is capable
of substantial non-infringing use. Google argues that its
search engine service is such a product. Assuming the principle
enunciated in Sony is applicable to the operation of
Google’s search engine, then Google cannot be held liable for
contributory infringement solely because the design of its
search engine facilitates such infringement. Grokster, 545
U.S. at 931-32 (discussing Sony, 464 U.S. 417). Nor can
Google be held liable solely because it did not develop technology
that would enable its search engine to automatically
avoid infringing images. See id. at 939 n.12. However, Perfect
10 has not based its claim of infringement on the design of
Google’s search engine and the Sony rule does not immunize
Google from other sources of contributory liability. See id. at
933-34.
So here: Google argues that Perfect 10 can't get the on category 2 because it's search engine has legitimate uses
other than permitting people to infringe copyright. (This is true. It's search engine's primary use is search.) But the court notes that we need to move on to the question of
category 1.
[20] We must next consider whether Google could be held
liable under the first category of contributory liability identified
by the Supreme Court, that is, the liability that may be
imposed for intentionally encouraging infringement through
specific acts.11 Grokster tells us that contribution to infringement
must be intentional for liability to arise. Grokster, 545
U.S. at 930. However, Grokster also directs us to analyze contributory
liability in light of “rules of fault-based liability
derived from the common law,” id. at 934-35, and common
law principles establish that intent may be imputed. “Tort law
ordinarily imputes to an actor the intention to cause the natural
and probable consequences of his conduct.” DeVoto v.
Pac. Fid. Life Ins. Co., 618 F.2d 1340, 1347 (9th Cir. 1980);RESTATEMENT (SECOND) OF TORTS § 8A cmt. b (1965) (“If the
actor knows that the consequences are certain, or substantially
certain, to result from his act, and still goes ahead, he is
treated by the law as if he had in fact desired to produce the
result.”). When the Supreme Court imported patent law’s
“staple article of commerce doctrine” into the copyright context,
it also adopted these principles of imputed intent.
Grokster, 545 U.S. at 932 (“The [staple article of commerce]
doctrine was devised to identify instances in which it may be
presumed from distribution of an article in commerce that the
distributor intended the article to be used to infringe another’s
patent, and so may justly be held liable for that infringement.”).
Therefore, under Grokster, an actor may be contributorily
liable for intentionally encouraging direct infringement
if the actor knowingly takes steps that are substantially certain
to result in such direct infringement.
What this is saying is
if Google did something
specific to encourage people who used its web site to download, Google could be pretty sure that people would violate copyright as a result of their showing the images,
then they might be liable . (For example, suppose the Google web site read "Please download this material and store it on your computer!!" or "Free Porn Images!" then that might be something specific google could do that would result in a ruling of indirect infringement.)
Now, I'll skip a bunch of examples the court discusses (Napster etc.) Getting back to what Google did.
Here, the district court held that even assuming Google had
actual knowledge of infringing material available on its system,
Google did not materially contribute to infringing conduct
because it did not undertake any substantial promotional
or advertising efforts to encourage visits to infringing websites,
nor provide a significant revenue stream to the infringing
websites. Perfect 10, 416 F. Supp. 2d at 854-56. This
analysis is erroneous. There is no dispute that Google substantially
assists websites to distribute their infringing copies to a ...
Note: the "This analysis is erroneous" looks bad for google so far....
worldwide market and assists a worldwide audience of users
to access infringing materials. We cannot discount the effect
of such a service on copyright owners, even though Google’s
assistance is available to all websites, not just infringing ones.
Applying our test, Google could be held contributorily liable
if it had knowledge that infringing Perfect 10 images were
available using its search engine, could take simple measures
to prevent further damage to Perfect 10’s copyrighted works,
and failed to take such steps.
So: Google could be held liable for visitors finding Perfect 10 images through the hyperlinks and downloading the hyperlinked images if
1) Google knew visitors did this (which I suspect google strongly suspects they do.)
2) It was in Googles power to prevent these visitors from making copies and
3) Google did not take these steps.
2&3 become important questions: Are there easy ways for Google to prevent anyone from copying images and if yes, did Google undertake these steps? What's the circuit court say about this:
[23] The district court did not resolve the factual disputes
over the adequacy of Perfect 10’s notices to Google and
Google’s responses to these notices. Moreover, there are factual
disputes over whether there are reasonable and feasible
means for Google to refrain from providing access to infringing
images. Therefore, we must remand this claim to the district
court for further consideration whether Perfect 10 would
likely succeed in establishing that Google was contributorily
liable for in-line linking to full-size infringing images under
the test enunciated today.13
What they circuit court says is: We don't know anything about the facts related to 1-3 above. It's not our place to decide that directly-- that would be decided by the district court first. They didn't even look at it. So, we are sending this back to the district court, where Perfect 10 and Amazon can bring forward evidence about whether "Google knew this was happening, whether they could have stopped it, and whether they didn't try".
Anyway, this continues on. If you read, there are ways in which hyperlinking
could lead to 'contributory infringement', but Perfect 10 would have to show evidence that these things
actually happened.
But basically, if you read this, hyperlinking might lead to contributory infringement but BWP would have to bring evidence about what 3rd parties (i.e. people who are not Google) did copy, and show that this behavior was induced or encouraged by Google or failing that, Google has to have the power to stop it and fail to do so. And merely hyperlinking does not induce it-- Google has to do something more. This is a tough climb for them.
And: Getting back to BWP, we should note they not only complain of hyperlinking but also that
For example, Defendant(s) have caused enabled, facilitated and materially
contributed to the infringement complained of herein by, providing the tools and instruction for
infringement via their Website(s) and have directly and indirectly promoted the infringement and
Case 1:14-cv-00147-LY Document 1 Filed 02/18/14 Page 5 of 8
refused to exercise their ability to stop the infringement made possible by their distribution
This is way, way, way more than the ordinary hyperlinker does. Most people hyperlinking merely create an inline link to show the image. They don't do anything like write "Go copy this image" or so on. If they did do that, them maybe they would be guilty of 'contributory infringement'. In this case, BWP is going to have to bring evidence showing that the defendant did do something to induce visitors to copy. maybe they did, maybe they didn't. We'll see.
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