Online Publishing Law

On December 3, 2007 the Ninth Circuit amended its May 16, 2007 opinion in Perfect 10 v. Amazon.com, Inc., 487 F.2d 701 (9th Cir. 2007) on a technical matter. The Ninth Circuit reversed itself as to which party has the burden of proof in proving fair use in the context of a preliminary injunction in a copyright infringement action. In the original opinion, the 9th Circuit held, “We conclude that Perfect 10 is unlikely to be able to overcome Google’s fair use defense and, accordingly, we vacate the preliminary injunction regarding Google’s use of thumbnail images.” Perfect 10 v. Amazon.com, Inc., 487 F.2d at 725. In that opinion, the burden was placed on the plaintiff to prove that the defendant does not have a fair use defense in order to succeed in a preliminary injunction. However, in the December 3 opinion, although the substantive holding regarding fair use remains intact, the Ninth Circuit reversed itself as to which party has the burden of proof. “We conclude that Google is likely to succeed in proving its fair use defense, and accordingly, we vacate the preliminary injunction regarding Google’s use of thumbnail images.” Perfect 10 v. Amazon.com, Inc., — F.3d —, 2007 WL 4225819, *15 (9th Cir. 2007). Thus, the December 3 opinion places the burden on the defendant to establish fair use in order to overcome a motion for preliminary injunction. Copyright owners everywhere breathe a small sigh of relief, because in effect, the Ninth Circuit opinion has lifted some heavy lifting off of copyright plaintiffs’ backs.

In other Perfect 10 news, the U.S. Supreme Court on December 3 denied cert in the Perfect 10 v. CCBill case, in which Perfect 10 sued CCBill and CWIE, two companies that Perfect 10 claimed enabled copyright infringement, violated California state trademark law and other state laws by providing online credit card billing and web hosting services to sites displaying unauthorized copies of Perfect 10’s images.