The Ninth Circuit issued a curious decision in Perfect 10 v. Amazon.com, No. 5555405 (16 May 2007). It's an unnatural decision concerning unnatural circumstances (and, in all probability, unnatural anatomical enhancements), many of which are the Ninth Circuit's own fault for its intellectual laziness in Kelly v. Arriba Soft. That, however, is beside the point. The key finding is this: That the District Court must reconsider everything.
Because the district court will need to reconsider the appropriate scope of injunctive relief after addressing these secondary liability issues, we do not address the parties' arguments regarding the scope of the injunction issued by the district court. For the same reason, we do not address the parties' dispute over whether the district court abused its discretion in determining that Perfect 10 satisfied the irreparable harm element of a preliminary injunction.
Perfect 10, slip op. at 5801. In other words, regardless of the crowing on both "sides" in the press, this is not an unvarnished win for anyone. In point of fact, the varnish is rather severely crackled. In no particular order, the court's airbrushing includes:
- Continued confusion over jurisdiction and copyright registration. Footnote 1 (slip op. at 575960) remarks that
Registration is generally a jurisdictional prerequisite to a suit for copyright infringement. ... [However, o]nce a court has jurisdiction over an action for copyright infringement under section 411, the court may grant injunctive relief to restrain infringement of any copyright, whether registered or unregistered.
(citations omitted) Remind me again about the propriety of courts issuing injunctions concerning matters outside their jurisdiction. I think the Supreme Court just issued a decision regarding a parallel limitation in a patent case. So, then, maybe Section 411 is better characterized as an element of the claim, not a jurisdictional prerequisite... because that would fall within the jurisdiction of the court, and we'd then be down to the issue of "discretion" on which the Ninth Circuit purportedly based its opinion. The existence of jurisdiction is, after all, not a question of discretion; only its exercise, and then only under very limited circumstances that don't apply here.
- Inaccurate characterization of "fair use" continues to be a blemish or, perhaps, a port-wine-stain birthmark on analysis of internet indexing and use. I've commented on this before concerning this very case. If anything, the appellate decision muddles things further, but at least it muddles them in an internally consistent manner. Perhaps that should be a big hint that "fair use" is a question of fact, not an unadorned right.
More disturbingly, the Court of Appeals' decision continues the conflation of the first and fourth factors of the fair use test (compare slip op. at 577883, especially n.8, with slip op. at 578485).
- Does injunctive relief really require overcoming a not-yet-ripe defense? This is a far more difficult question than it appears. The court below affirmed by the Court of Appeals held that Perfect 10's burden to demonstrate likelihood of success on the merits extended not just to showing that its prima facie case would succeed, but that it would overcome any fair-use defense. Slip op. at 5766. There's quite a bit of attraction to this concept in a very general sense; after all, "likelihood of success" surely (as a matter of logic) includes "overcome an anticipated defense." The problem, though, is that on these facts the fair use defense is not yet ripe, because the scope of the actual use has not yet been defined. One can't call a use "fair" without knowing what it is!
The court below and the Court of Appeals both noted that the exact nature of the "infringement" must still be developed through the facts. The Court of Appeals' determination that the trial judge's alternative "ground" for decision that, even aside from fair use, Google's uses would constitute neither contributory nor vicarious infringement, due (at first reading) to lack of adequate "control" over users' actions was not quite sufficient only reiterates this difficulty. This is parallel to the problem with the trial court decision in Ellison that provided the ground for reversal: Once one determines a fact, that fact applies to all legal theories... not just the legal theory that forced one to make that factual determination. Thus, I think the Court of Appeals reached the right result, if not necessarily for the right reasons, on this issue: "It's the facts, stupid!"
- "Secondary" is not the logical converse of "direct." I observed this unfortunate rhetorical error when discussing the Supreme Court's decision in Grokster. This time, however, the Court of Appeals appears to be relying on Justice Souter's misstatement as a point of law. Sigh.
- Ellison is increasingly important in delineating liability on the 'net. The Court of Appeals cited Ellison more than a dozen times. I'd like to think that means our brief meant something.