Perfect 10 – the publisher of adult photographs that lost its appeal to hold Google liable for copyright infringement by linking to and displaying thumbnails of unauthorized copies of its copyrighted images – has won the support of the MPAA, the RIAA, and several other industry groups in a separate effort to hold Visa and other financial services businesses liable for enabling copyright infringement.
The various industry groups recently filed an amicus curiae brief with the U.S. Supreme Court in support of Perfect 10’s petition for review of the 9th Circuit’s refusal to reverse the trial court’s dismissal of its claims against the defendant businesses. In this litigation, Perfect 10 has argued that the credit card companies facilitated infringement of its copyrighted content by providing payment processing services to various businesses that copy and distribute that content for profit. However, the 9th Circuit dismissed all of Perfect 10’s claims in July 2007, characterizing those claims as “radical new theories of liability.” In its opinion, the Court held that the fact “that Defendants have the power to undermine the commercial viability of infringement does not demonstrate that the Defendants materially contribute to that infringement.” In their brief, the amici counter that it is the 9th Circuit’s opinion that “dramatically changes the secondary liability standards that courts have applied for decades, and it does so in ways that threaten the effectiveness of secondary liability as a means to combat Internet piracy.”
Though it seems an unlikely result, if the Supreme Court does grant Perfect 10’s petition for review, the effects of its opinion on the matter could be very far-reaching and could further inform interpretation of the 9th Circuit’s earlier ruling on Perfect 10’s claims against Google.