9th Circuit Denies Rehearing to Perfect 10 in Giganews Case

PASADENA, Calif.—In an Order issued earlier today, a three-judge panel of the Ninth Circuit Court of Appeals has denied a rehearing to copyright troll Perfect 10 in its attempts to have internet service provider Giganews held liable, despite the prohibitions in Section 230 of the Digital Millennium Copyright Act (DMCA), for its users having posted images owned by Perfect 10 over Giganews' network. The panel, consisting of Judges Harry Pregerson, Dorothy W. Nelson and John B. Owens, voted to deny the rehearing, with Pregerson and Nelson going the extra mile to recommend denial of Perfect 10's petition for rehearing en banc, and Owens outright voting against the en banc rehearing. According to the Order, the full Ninth Circuit court is aware of the en banc petition, and at press time, no active judge had asked for a vote on whether to rehear the matter en banc. The current ruling follows in the footsteps of an amicus brief filed in mid-April by a consortium consisting of Internet Infrastructure Coalition, the Internet Association, the Computer & Communications Industry Association and the Consumer Technology Association supporting Giganews' position in the suit, arguing that any relaxation of the Section 230 standard would open the door to myriad lawsuits by aggrieved claimants arguing that ISPs, who are generally immune from lawsuits regarding material their users post online on the company's Usenet service, should nonetheless be responsible for whatever alleged harms the users commit. "Doing so [removing the Section 230 immunity] would have little effect on cases brought against pirates, but would severely and unnecessarily threaten innovation and investment in lawful online services and connected devices," the consortium's brief stated. In the past, Perfect 10 has brought unsuccessful copyright infringement suits against such major internet players as Google and Amazon, which were also considered (and rejected) by the Ninth Circuit, holding in those cases that "vicarious liability requires a causal connection between infringement of the works-in-suit and a direct financial benefit to the defendant." Giganews makes no money directly from its users' online postings. A 2014 district court order requires Perfect 10 to repay Giganews for the company's legal fees in defending itself against Perfect 10's legal actions—an amount approaching $5.5 million.