Ninth Circuit rejects adult publisher’s claims of copyright infringement

The US Court of Appeals for the Ninth Circuit has upheld a decision that went against Perfect 10, a publisher of adult images, centring on Usenet.

Usenet is an international collection of organisations and individuals whose computers connect and exchange messages posted by Usenet users.

Perfect 10 said it owned the exclusive copyright to tens of thousands of adult images, many of which had been illegally distributed over Giganews’s servers. Giganews is a Usenet service provider.

Previously, Perfect 10 had sent “numerous” letters fashioned as takedown notices under the Digital Millennium Copyright Act to Giganews when it found infringing materials.

In April 2011, the publisher filed a copyright infringement claim at the US District Court for the Central District of California.

Over the next few years, the district court issued a series of decisions against Perfect 10. In March 2015, it ordered that Perfect 10 should pay more than $5.6 million in attorneys’ fees and costs. 

Perfect 10 appealed, arguing that the district court erred in concluding that Giganews had not infringed the publisher’s copyright.

At the Ninth Circuit, the panel of judges focused mainly on whether the district court had properly decided that Perfect 10 had to show “volitional conduct” by Giganews on the direct infringement claim.

Circuit Judge Dorothy Nelson, who gave the opinion for the court, held that volitional conduct by a defendant is one of the elements of a prima facie case of direct infringement.

“In sum, the district court correctly rejected Perfect 10’s direct infringement claim because Giganews was not the proximate cause of any infringement in this case,” she said.