Perfect 10 Denied Preliminary Injunction Against Google, Affirmed by Ninth Circuit

Perfect 10 has a long history of legal action against Google.  The Ninth Circuit does not recount that history in its most recent opinion, but refers the reader to Perfect 10 II, 508 F.3d 1146.

Perfect 10 makes its copyrighted photographic images of nude models available for viewing on a password-protected, paid-subscription website.  These copyrighted images produce essentially all of Perfect 10’s income.   Perfect 10 opposes the display of thumbnail versions of its images by Google’s search engines.  This appeal arises out of Perfect 10’s motion for a preliminary injunction following the Ninth Circuit’s remand in Perfect 10 II.

Perfect 10 argued that it was entitled to an injunction because Google’s web and image search and related caching feature, its Blogger service, and its practice of forwarding Perfect 10’s takedown notices to chillingeffects.org constituted copyright infringement.

(Opinion pdf page 4).

The district court denied Perfect 10’s motion for a preliminary injunction.  The Ninth Circuit first discussed the applicable standard for issuing a preliminary injunction in copyright cases.  It then discussed whether Perfect 10 established that it was likely to suffer from irreparable harm if the injunction did not issue.

Preliminary injunction.

A plaintiff seeking a preliminary injunction must establish (1) that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest.

(Opinion pdf page 5).

Perfect 10 argued that since it made a strong showing that it was likely to succeed on the merits of its copyright claims, the district court was required to presume that it would suffer irreparable harm and grant the motion for an injunction.  In other words, because Perfect 10 believed that it established it was likely to establish copyright infringement, the district court should automatically issue the injunction.

The Ninth Circuit discussed how even though there is support for Perfect 10’s argument in previous Ninth Circuit decisions, the standard articulated by Perfect 10 is not the law.  In eBay Inc. v. MercExchange, L.L.C., the U.S Supreme Court indicated that the permissive language in the Copyright Act regarding injunctive relief did not demonstrate a congressional intent to depart from traditional equitable principles in granting an injunction in a copyright case and that, therefore, an injunction should not automatically follow a determination of copyright infringement.  Prior to the Supreme Court’s ruling in eBay, federal district courts routinely granted injunctions to prevailing rights holders in both patent and copyright cases.

The Ninth Circuit rejected Perfect 10’s argument for an automatic injunction and ruled that “the propriety of injunctive relief in cases arising under the Copyright Act must be evaluated on a case-by-case basis in accord with traditional equitable principles and without the aid of presumptions” that favor issuing the injunction.  (Opinion pdf page 8).

Although the injunction at issue in eBay was a permanent injunction, not a preliminary injunction such as Perfect 10 requested, the Ninth Circuit determined that the standard is essentially the same.

Irreparable harm

The district court ruled that Perfect 10 failed to establish that it would suffer irreparable harm if the preliminary injunction did not issue.  The Ninth Circuit held that “Perfect 10 has not shown a sufficient causal connection between irreparable harm to Perfect 10’s business and Google’s operation of its search engine.”  (Opinion pdf page 11).  To support its conclusion, the Ninth Circuit pointed to the failure of Perfect 10 to establish that the business was ever financially sound, the free access of Perfect 10 images on other search engines and the failure of Perfect 10 to identify even one former subscriber who stopped paying for the service due to the availability of the images on Google for free.

This opinion is Perfect 10, Inc. v. Google, Inc., No. 10-56316.