Perfect 10 publishes pictures of naked women, some of which are
pirated by other companies which charge for access to their sites.
Perfect 10 said that companies that process payments to these
copyright-infringing sites are themselves benefiting from
piracy.
It lost its case earlier this year and it took an appeal to the
Supreme Court. That Court has just published the list of which
cases it will and will not hear, and the Perfect 10 case has been
denied a hearing.
The credit card companies involved, CCBill and CWIE, argued that
the 'safe harbor' provisions of the Digital Millennium Copyright
Act (DMCA) and the Communications Decency Act protected them.
The 'safe harbor' provisions protect companies such as credit
card firms or internet service providers (ISPs) from liability for
the actions of their customers. The earlier court ruling found that
the safe harbor provisions of both laws applied in the Perfect 10
case.
The company had previously tried to sue Visa, amongst others, on
similar grounds but it lost that case in 2004. The judge in that
case said that in order to qualify for contributory infringement,
credit card firms would have to have provided assistance which bore
"some direct relationship to the infringing acts".
Perfect 10 has taken a number of controversial previous lawsuits
in attempts to protect its photographs. It lost a hotly-contested
case against Google earlier this year in which it argued that
Google's image search function's publishing of thumbnail images of
Perfect 10 pictures was a violation of copyright law.
In a long and complicated adjudication, the Court of Appeals for
the Ninth Circuit said that the creation and display of thumbnail
images was not copyright infringement, but it did not decide on
some other crucial issues, sending them back to a lower court for
further analysis.
The court said that Google cannot be said to be distributing the
full-size images because it does not hold a copy of them. Rather it
indexes them, said Judge Sandra Ikuta.
A lower court had placed an injunction on Google's publishing of
the thumbnails, but that was lifted by Ikuta, who said the
publishing qualified as fair use under the DMCA.
