Mountain View, CA (November 21, 2014) – Fenwick & West secured a total victory for Usenet service providers Giganews and Livewire in a hard-fought copyright infringement case brought by frequent copyright plaintiff Perfect 10. United States District Court judge André Birotte Jr. in Los Angeles handed down the decision in the case of Perfect 10, Inc. v. Giganews, Inc. with a pair of important new rulings on copyright law involving online service providers. The Fenwick lawyers had previously obtained dismissal of trademark, publicity rights, and unfair competition claims; defeated a preliminary injunction motion; defeated a summary judgment motion by Perfect 10; and won motions challenging testimony of all three of Perfect 10’s expert witnesses. Four different federal district judges had issued rulings favorable to the defendants in the case, which began in 2011.
“We went to the root of the case by knocking out the infringement claims,” said Fenwick IP litigation partner Andrew P. Bridges, who led Fenwick’s litigation team. “A typical approach by online service providers defending allegations of copyright infringement is to focus on the safe harbor under the Digital Millennium Copyright Act. The safe harbor is more complicated than fighting the core infringement claims, and it merely limits the monetary damages and injunction that are available against infringers. Instead, we went straight to the heart of the case and successfully fought the claims of infringement. This is a victory on the merits, a substantive finding that Giganews and Livewire had not infringed on any rights in any way.”
An important earlier decision in the case ruled against Perfect 10’s effort to gain judicial approval of its notifications of claimed infringement. The court held that Perfect 10 had not made the case that its notifications complied with requirements of the law.
Perfect 10, a serial copyright plaintiff, sought statutory damages of up to $2.9 billion dollars for alleged direct and indirect copyright infringement, in addition to damages for alleged trademark infringement and right of publicity violations, arising from individuals’ posting to Usenet pictures in which Perfect 10 claimed rights. Perfect 10 claimed that over 19,000 images were at issue.
The Fenwick litigation team, which Bridges led, included Ilana Rubel, Jennifer Kelly, Brian Buckley, Joseph Belichick, Todd Gregorian, Kathleen Lu, Liwen Mah, Armen Nercessian, Annasara Purcell and Jennifer Johnson.
“Our adversary’s strategy was to complicate and inundate,” concluded Bridges. “Our clients stuck to their guns. We were gratified by how perceptive the judge was and how well the judge cut through the chaff. We didn’t allow Perfect 10 to distract us and neither did the court.”
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