Perfect 10 Seeks Severe Sanctions against Google for Discovery Abuse

BEVERLY HILLS, Calif.--(BUSINESS WIRE)--According to Perfect 10, the former publisher of Perfect 10 Magazine, their five year battle with Google is about to heat up. On December 1, 2009, Perfect 10 completed its filing of a motion for sanctions against Google in the United States District Court for the Central District of California, accusing Google of widespread discovery abuse, including multiple violations of three separate court orders.

“Perfect 10 believes that Google has clearly violated multiple Court orders”

“Google appears to have the view that it is above the law,” said Dr. Norm Zada, President of Perfect 10 and a former professor at Stanford and Columbia Universities. “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 was forced to close Perfect 10 Magazine, a magazine which featured scantily clad images of some of the world’s most beautiful natural models, in June 2007. It still runs its website, perfect10.com. Perfect 10 filed its lawsuit against Google on November 19, 2004. Perfect 10 alleges in the lawsuit that Google is liable for copyright infringement because it makes unauthorized copies of thousands of Perfect 10 images, places its ads around those images without Perfect 10’s permission, stores full-size Perfect 10 images on Google servers, displays passwords to Perfect 10’s website, and basically offers all of Perfect 10’s intellectual property to the public for free, thereby completely usurping Perfect 10’s entire business. The case revolves around the Digital Millennium Copyright Act (the “DMCA”), a law 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 explained. “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 has argued that Google has failed to satisfy either of these statutory requirements.

“A large company like Google that displays and links to so many millions of infringing images, must keep track of complaints made by copyright owners in the form of a spreadsheet that is readily sortable and searchable,” says Zada. “And it must keep track of the identity of each alleged infringer. Otherwise, it simply can’t keep track of the number of notices it receives concerning any particular infringer, as it must do to be eligible for protection under the DMCA.”

“Perfect 10 believed that Google’s DMCA log would allow us to quickly prove that Google was not eligible for protection under the DMCA, so we fought hard to get that log,” says Zada. “Perfect 10 obtained an order from Magistrate Judge Stephen Hillman compelling Google to produce its DMCA log or equivalent on May 22, 2006, but in our view, Google did not comply with that order. Therefore, Perfect 10 asked the Court again to compel Google to produce its DMCA log.”

On May 13, 2008, United States District Judge A. Howard Matz ordered Google to produce its DMCA log. The Order issued by Judge Matz defined a DMCA log 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 believes that Google has clearly violated multiple Court orders,” says Zada. “Google is making a mockery of the discovery process. Perfect 10 can’t fairly litigate the case when it doesn’t have the documents and the log that the Court ordered Google to produce,” Zada adds.

According to Zada, Google makes millions of dollars by placing Google Ads around tens of thousands of images, including celebrity images that Google does not own, and by offering such images to its users without cost and without authorization. “Google makes tons of money from the millions of celebrity images and the tens of thousands of Perfect 10 images that it offers to its users for free and places its ads around, so it doesn’t want to remove those images,” says Zada. “As a result, Google has made it as difficult as it can for Perfect 10 and others to submit DMCA notices,” claims Zada.

“Google’s litigation strategy has been to argue that every one of the more than 170 DMCA notices Perfect 10 has sent it is deficient,” said Zada. “But Google has refused to tell us how our notices need to be changed or provide us with examples of what Google would consider to be a compliant notice under the circumstances.”

Perfect 10’s Motion for Sanctions against Google is currently set for hearing on December 21, 2009.