In fact, WebProNews has articles dating back to 2005 discussing this very subject. However, according to the latest appeal loss, the saga may finally be coming to an end. According to a post over at CNet, the latest attempt by Perfect 10, one that seeks to punish Google for being a search engine that works as its supposed to, has been denied.

Here’s the gist:

The Ninth Circuit ruled that Perfect 10, a porn studio with a long history of filing copyright suits against Internet companies, rejected a request for a preliminary injunction against Google. The court said that Perfect 10 didn’t present enough evidence to prove that it would suffer irreparable harm from the photos.

You see, Perfect 10′s content is primarily hidden behind a pay wall, meaning, in order to see their index of naked women, you have to pay for it. Unfortunately for the Perfect 10 web developer, who apparently didn’t understand how to manipulate a robots.txt file, apparently, Perfect 10 images began appearing in Google’s image search results.

Regardless of the fact that there are an unending amount of tutorials and instructional sites that inform developers how to keep their paid content from appearing in free image searches, for some reason, Perfect 10 felt it was Google’s fault their paid content was going out to the world for free.

In fact, Perfect 10′s claim was Google’s image search cost them something in the area of $50 million. Disregarding the fact that, again, the blame should’ve been placed directly on the head of the Perfect 10 web developer, the company tried, and tried, and tried again to make Google (and others) pay for their design inadequacies.

Each time, these attempts did little but clog up a court system that’s already bursting at the seams.

There was, apparently, a slight moment of victory when another judge upheld a Perfect 10 filing against Megaupload, a file-sharing site that allows others to swap files via email or direct download. Granted, Megaupload doesn’t have the money Google does, but even the smaller victories count, right?

It should also be noted that when a “Perfect 10” search is conducted in Google Images, the amount of content originating from the site in question is negligible, even if SafeSearch is turned off. This mean that, even though the Perfect 10 web developers finally figured out how to protect their paid content, the company still wants to nail Google to the cross.

A semi-recent post on the Perfect 10 blog reveals as much. The title, “Google Is Destroying The Entertainment Industry” reeks of a “give me back my money” approach, courtesy of Mel Gibson and South Park:

This week, Perfect 10 completed its filing of a motion for sanctions against Google in the U.S. District Court for the Central District of California. Perfect 10 is accusing Google of "widespread discovery abuse," which the company says includes multiple violations of three separate court orders.

Perfect 10′s legal feud with Google began back in 2004. The case dealt with Google’s use of thumbnails from Perfect 10′s site. It was essentially a question of whether or not that was considered fair use. Google had eventually lost the case, but the ruling against Google had been tossed out by an appeals panel. That was in 2007. However, it did not end there. Fast forward to now.

"Google appears to have the view that it is above the law," says Perfect 10 President, Dr. Norm Zada. "We spent a great deal of time and effort obtaining Court orders requiring Google to produce documents critical to our case. In our view, Google has not complied with those orders."

Perfect 10 says the case revolves around the Digital Millennium Copyright Act (DMCA), which was passed by Congress in 1998 to address issues concerning copyright infringement on the Internet.

"Under the DMCA, a search engine such as Google may receive limited immunity from monetary damages for copyright infringement if it complies with the requirements of the DMCA," Zada says. "The search engine must act expeditiously to remove or disable access to infringing material upon receiving notice of infringement from the copyright owner, and it must adopt a procedure so that copyright holders will not have to provide the search engine with notices about the same infringing material or the same infringers over and over."

Perfect 10 says it has argued that Google has "failed to satisfy" these things. Perfect 10 says a judge ordered Google to produce its DMCA log, which the company says is defined as "a spreadsheet-type document summarizing DMCA notices received, the identity of the notifying party and the accused infringer, and the actions (if any) taken in response."

Perfect 10 is insisting in its press release that Google has violated multiple court orders, and that Perfect 10 can’t "fairly litigate the case" without such documents. 

Perfect 10′s  motion for sanctions against Google is currently set for hearing on December 21. It will be interesting to see how this plays out. Perfect 10 hasn’t had the best of luck in the past.

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> Court Is OK With Sexy Google Images

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That wasn’t a clean for win for Google or Amazon, as one judge, before being overturned on appeal, said they could be partially liable for infringement for displaying the thumbnails.

Perfect 10 is hoping to push that logic more by suing Microsoft, who, they claim, not only has infringing thumbnails, but also links to full-sized images. They also say Perfect 10 website passwords could be found on the MSN site as well.

Like numerous print publications around the country, Perfect 10 shut down its print operation, citing the availability of their content for free on the Internet, which, consequently is also hurting their Web presence.

"Our business is being destroyed," Perfect 10 president Norm Zada told InformationWeek. "This is a life and death battle for us."

Though indexing images and providing thumbnails has been declared repeatedly as fair use, Perfect 10 says it has no choice but to go after the search engines, who make money from advertising next to allegedly infringing material, but that a good percentage of websites displaying their content are based in Russia or China.

Beyond that, things get a little murky, and as my knowledge of law doesn’t extend much beyond the show “Boston Legal,” we’ll turn to some more informed experts.

“The court’s opinion, though not perfect, laudably recognizes that a decision in Perfect 10’s favor would have opened potentially endless claims of liability against a wide range of potential defendants who simply do business with infringers,” writes Alfred Yen on the madisonian.net blog.

In a longer analysis, Eric Goldman addresses the full “hat trick of appeals,” and good old Google’s name comes up.  “Financial service providers (FSPs) got a complete victory (12b6 dismissal), other support service providers (like ccBill) got significant protection, and Amazon/Google avoided direct copyright infringement but could be contributorily liable if they have sufficient involvement in the infringement (this liability is a little dicey, but we’ll see on remand).”

Goldman then continues, “[W]ading through the details shows just how problematic Ninth Circuit cyberlaw jurisprudence has become.  The Ninth Circuit has chunked a few major Internet cases – Napster and Brookfield are two conspicuous examples – which has produced a long list of tortured subsequent precedent. . . .  I think the law is still being decided case-to-case, substantially undercutting the precedential utility of this case.”

I can understand that, at least, and it also seems clear that all the companies named in Perfect 10’s suits are, for the time being, safe.  Denny Crane.

The appeals court ruled that the thumbnails fell within a “fair use” exception in copyright law because they play a role in the search process and thus have a function different from that of the original photos.

“We conclude that the significantly transformative nature of Google’s search engine, particularly in light of its public benefit, outweighs Google’s superseding and commercial uses of the thumbnails in this case,” Judge Sandra S. Ikuta wrote for the panel.

Google’s not quite out of the woods yet. The panel of judges wants the lower court to take another look at whether Google’s display of thumbnail images, encourages other web sites to distribute copyrighted images.

The appeals court opinion said, “There is no dispute that Google substantially assists Web sites to distribute their infringing copies to a worldwide market and assists a worldwide audience of users to access infringing material.” The appeals court instructed the district judge to evaluate whether Google knew that unauthorized copies of Perfect 10’s photos were being made available and failed to take steps to prevent it.

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Court Is OK With Sexy Google Images

Google had lost a court case involving Perfect 10, but the appeals panel for the US Ninth Circuit tossed out the lower court’s ruling. The case, which started in 2004, has been considered a test of copyright law versus doctrines of fair use on the Internet.

In this appeal, fair use won out over the copyright claim. The Washington Post cited how the search process uses thumbnails in a different way than the original images:

“We conclude that the significantly transformative nature of Google’s search engine, particularly in light of its public benefit, outweighs Google’s superseding and commercial uses of the thumbnails in this case,” Judge Sandra S. Ikuta wrote for the panel.

Google isn’t out of hot water yet with Perfect 10. One decision from the earlier court case found that Google was not liable when Internet users linked to sites containing original Perfect 10 pictures, as found in their search results. That decision will now be reviewed.