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Perfect 10 Sues Giganews for Copyright Infringement
May 2, 2011
Thomas Mennecke
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In a case that very well may test the limits of the DMCA's (Digital Millennium Copyright Act) safe harbor provision for ISPs, adult entertainment producer Perfect 10 has filed a copyright complaint against Giganews (and 100 John Does) for $25 million. The DMCA is a tool that is both hated and begrudgingly respected by file-sharers, as it not only places significant limits on digital replication, but also protects ISPs from any illegal activities that may transpire across their network. Oh, the DMCA also allows for iPhone jailbreaking too.

The DMCA has several provisions that allow copyright holders and potential violators to settle their differences before resorting to legal remedies. This is known as the DMCA takedown procedure, where the rights holder notifies the alleged infringer of the violation, and requests that the materials be removed. Apparently Perfect 10 did in 2009, as it attempted to protect more "than 165,000 Perfect 10 copyrighted images – roughly 15,000 Perfect 10 copyrighted images per website."

"On March 25, 2009, Perfect 10 sent to Giganews approximately 800 Perfect 10 copyrighted images, a number of which displayed Perfect 10 copyright notices. Perfect 10 notified Giganews that Giganews was infringing a vast collection of third party copyright works, Perfect 10 rights of publicity, and Perfect 10 copyrighted works. Giganews wrote back claiming that it could not find the allegedly infringing images based on that notice, which was simply not correct."

Also named in the suit was Livewire Service, Inc., a company that resells Giganews' content (operates "rhinonewsgroups.com,
powerusenet.com, infinityusenet.com, eurousenet.com, galacticgroups.com,
cheapnewsgroups.com, fastusenet.com, usenetgiant.com, and usenet.net, among others)."

100 John Does were also named in the suit - as Perfect 10 states there are numerous defendants within both organizations that have profited due to copyright infringement. Where does Perfect 10 come up with $25 million in damages?

"3. For an order of restitution and/or disgorgement in the amount of the
benefit to Defendants by reason of their unlawful conduct, in an amount to be proven at trial, but not less than $5 million.

4. For Perfect 10’s actual damages, in an amount to be proven at trial,
but not less than $5 million.

5. For a full accounting of all profits, income, receipts, or other benefits derived by Defendants as a result of its unlawful conduct.

6. For statutory damages under the Copyright Act, in an amount to be
proven at trial, but not less than $5 million.

7. For treble damages under the Lanham Act, in an amount to be
proven at trial, but not less than $5 million.

8. For statutory damages under California Civil Code Section 3344, in
an amount to be proven at trial, but not less than $5 million."

Usenet has always held an interesting position within internet realm and that of file-sharing. Unlike services such as LimeWire, BearShare, or WinMX, Usenet has never come under the kind of legal scrutiny that's destroyed many other companies. Thanks to Usenet's dual use purpose and its historical roots as a bulletin board system, this benefit continues into the 21st century.

However, this is the first major legal challenge to the newsgroups since the Usenet.com case (you could argue the FTD vrs. BREIN). If the images were on the server in 2009, chances are the nearly 1,000 days of retention of Giganews' servers will allow these images to still exist, giving Perfect 10 some legal ammo if the case heads to court. But this is a thin case, and the DMCA's legal protection of ISPs may go a long way to shuffling this latest challenge under the carpet.

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