Perfect 10 served invalid DMCA notices on Google, says court

Perfect 10 is a publisher of nude photographs. It sued Google because that company's search engine displayed small thumbnail images of its pictures when giving certain search results.

Perfect 10 said that it used the notice and takedown procedures of the US Digital Millennium Copyright Act (DMCA) to inform Google that its publishing of images infringed its rights.

When Google failed to remove the images from its service it broke copyright law, Perfect 10 claimed.

But the US District Court for the Central District of California has ruled that Perfect 10 failed to give Google the kind of specific notice required by the DMCA in most cases, and so has no right to sue for Google's refusal to take down those images.

In order to force a publisher to take material down, a copyright owner must identify the copyrighted work which is being infringed and provide the link which leads to the infringing material.

The Court ruling divided Perfect 10's notices into three groups. Notices in the first group were sent to the wrong email address and so were invalid.

"All of the Group A notices were sent by email to '[email protected]' instead of to the address of Google’s designated agent listed at the Copyright Office," said the ruling. "The Court finds that Google has shown that there is no genuine dispute of material fact that the Group A notices did not provide notice under the DMCA."

The second group contained many links which were invalid. Google will have to show, though, that it acted 'expeditiously' to remove the links that were valid in line with the demands of the DMCA, the Court said.

The third group consisted of material which was not well enough organised or clear enough to count as a legitimate notice, the Court said.

"The Group C notices ... require the service provider to move back and forth between several different files in order to determine that a given URL was infringing (in the instances where the URLs were provided, which was not always the case)," said judge Howard Matz. "The Group C notices generally consist of a cover letter, a spreadsheet, and a hard drive or DVDs containing electronic files."

"Where P10 [Perfect 10] provided spreadsheets, the spreadsheets do not identify the infringing URL, but merely the top-level URL for the entire website. P10 evidently expected Google to comb through hundreds of nested electronic folders containing over 70,000 distinct files, including raw image files such as JPEG files and screen shots of Google search results, in order to find which link was allegedly infringing," he said. "In many cases, the file containing the allegedly infringing image does not even include a URL, or the URL was truncated."

"The spreadsheets also do not identify the copyrighted work that was allegedly infringed all of P10's Group C notices lack the identification of the copyrighted work required by [law]," it said. "In order to process a single allegedly infringing URL, Google would have to go through at least eight steps ... Google might have to complete this process for many, if not all, of the 70,000 distinct files contained in the DVDs."

Because of these problems, the third group of Perfect 10's notices did not qualify as being valid under the DMCA, the Court said.

Digital rights group the Electronic Frontier Foundation (EFF) said the case serves as a warning to others.

"Copyright owners, take note: If you're going to use the streamlined Digital Millennium Copyright Act process to require a service provider to remove allegedly infringing content, you'd better make sure you actually comply with the DMCA notice requirements," said a blog post on the ruling by the EFF's Corynne McSheery."Otherwise a court may find that your 'notice' didn't actually put anyone on 'notice'."