Defending against a Google asault
Published: 06 Mar 2006 12:55 GMT
...a tremendous number of wonderful people. We have a wonderful writing crew for Perfect 10, consisting of David Black, who is our editor-in-chief and former executive producer of CSI: Miami. Most of the Perfect 10 writers are outstanding.
We have tried real hard to make a wonderful, wonderful publication, and we think we're entitled to benefit from the wonderful film that we've created that nobody else has. The problem is, everyone is infringing it, including large corporations, and benefiting from our hard work.
There have been a lot of people who have not been very sympathetic with Perfect 10, but I think that if they worked really hard to create a business and they had products they were proud of, they would go nuts if people were utilising their products to make money at their expense. And that's what's happening right now.
And what is your prediction on how the courts will ultimately rule?
I'm pretty sure we'll win on the direct infringement issue. But the problem is that many of the direct infringers are in places like Russia and China, and there's no way to track them down. As far as indirect or secondary infringement is concerned, it's too easy for people to take advantage of our material without actually copying it themselves.
Remember, Grokster was a secondary liability case and there was a huge battle over Grokster which has not been completely resolved. If the ultimate conclusion from all of this is you can't assert secondary liability against people who are benefiting from intellectual property, if the only test is they have to copy it themselves, then that will be the end of motion pictures, songs and Perfect 10.
Has the recording industry or movie industry stepped up and offered you support on your copyrights battle, or do you feel like the actor Rodney Dangerfield and "can't get no respect" because of the content you provide?
Perfect 10 is not the perfect plaintiff in this case. It would have been much better if the motion pictures studios had sued instead of Perfect 10. Even though we have a very tasteful magazine, we are not viewed as respectfully as, obviously, the motion pictures studios.
The problem is that motion picture studios and the recording industry have been battling all their other battles like Grokster and all these other things.
I don't think they fully appreciate how critical this particular case is to their future. Napster was not a direct infringement case; it was a secondary infringement case, and they won Napster. But if we lose this case on secondary liability for linking, given the somewhat different facts and circumstances, then basically anybody, not just a search engine, can just link to sites that offer songs, link to sites that offer full-length movies and create a big, huge directory. Go to a site, click on a song; go to a site and click on a movie. It will be the end of motion pictures and songs.
Now that you have won a preliminary injunction in the case, do you think you'll get interest from the recording or movie industry to join you in the case?
We suspect one or more of them will join us in the appeal, but I don't know for sure. It's a political thing for them. I think it would be a mistake for them not to join the appeal, because the appeal would be much more sympathetically viewed by the ninth Circuit if we had major players in it besides Perfect 10. So, it's very important for us to get other major copyright holders to join in. I just don't know what the probabilities are.
Do you think Google did not act on your requests because you were not the recording industry or movie industry and, instead, a publisher of adult content?
Google may have felt that Perfect 10 was too small and no one would take us as being important.
But we did a very big win here. It is the first time I am aware of a federal judge that has said that somebody had a likelihood of success against Google for copyright infringement, and that opinion could have a dramatic impact.
And what happens if you lose in the ninth Circuit Court. Will you shut down Perfect 10?
If we do not prevail and are not able to protect our copyrighted material, I will probably stop the magazine and probably continue the Web site. We will basically give up. I put eight years of my life and millions and millions of dollars into this. People claim I'm this big litigious person. The last thing in the world I want to do is file a lawsuit.
We always try to settle lawsuits before we file them. Unfortunately, we were not able to settle this lawsuit before we filed it. We have tried to settle it later and have not been able to do so.
Lawsuits are terrible. The whole legal system is horribly backed up because there are not enough federal judges. This case could go on for years. How much energy do I have to spend the rest of my life, struggling over every detail, every piece of evidence, every deposition? I have better things to do. I hate litigation. I don't want to keep litigating, and whatever the 9th Circuit ultimately decides to do is what's going to determine whether Perfect 10 continues, or I just give up on it.
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