• INTELLECTUAL PROPERTY RIGHTS LAW

United States Court of Appeals

For the ninth Circuit

Perfect 10, Inc. Vs. Google, Inc. (Decided on 03.08.2011)

Copyright - Infringement - Injunction - Appellant has moved for preliminary Injunction against the Respondent contending that Respondent's web and image search and related caching feature, its Blogger service, and its practice of forwarding Appellant's take down notices to chilling effects.org constituted copyright infringement further Appellant contended that it was entitled to an injunction based upon Respondent's alleged violation of the rights of publicity assigned to Appellant's by some of its models - Whether the District Court erred in denying Appellant's request for preliminary injunctive relief

Held, Copyright Act provides that courts 'may' grant injunctive relief 'on such terms as they may deem reasonable to prevent or restrain infringement of a copyright. Nothing in the statute indicates congressional intent to authorize a "major departure" from "the traditional four factor framework that governs the award of injunctive relief," or to undermine the equitable principle that such relief is an "extraordinary and drastic remedy" that "is never awarded as of right. 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 or a "thumb on the scale" in favor of issuing such relief. Given the limited nature of this evidence, the District Court did not abuse its discretion in concluding that Appellant failed to establish that Respondent's operations would cause it irreparable harm. Dr. Zada acknowledges that the company lost money at the beginning" and has never made up that ground during its 15 years of operation. Dr. Zada also acknowledged that search engines other than Google contribute to making Perfect 10 images freely available. Moreover, Appellant's theory of irreparable harm, it failed to submit a statement from even a single former subscriber who ceased paying for Perfect 10's service because of the content freely available via Google. Nor has Appellant provided any evidence in support of its claim that Google's alleged violation of the rights of publicity assigned to Appellant by its models would cause it irreparable harm. Appellant failed to show a sufficient causal connection between irreparable harm to Appellant's business and Google's operation of its search engine. Hence Order of District Court affirmed.