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Perfect 10, Inc. v. Cybernet Ventures, Inc., et al. in adult check
participating
2002 U.S. Dist. Lexis 7333, CV 01-2595 LGB (C.D. Ca., April 22,
2002)
Court issues preliminary injunction against Cybernet Ventures, which operates
an Age Verification Service, based on the use by web sites operated by third
parties of various images in which plaintiff held the copyright, or featuring
a model who had assigned her right of publicity to plaintiff. Penthouse
~ Sexiest Amateur Video Ce...
Cybernet Ventures operates the Age Verification Service
"Adult Check." Participating web sites put a script on their site
which direct first time users to Cybernet, who sells them access to the Adult
Check family of sites. The user is thereafter free to visit Adult Check sites
for a set period of time. The fees generated by this user are paid to
Cybernet, who splits them with the web site which sent the user to Cybernet.
To assist the user in finding Adult Check sites to his liking, Cybernet
provides both a series of links as well as a search engine. It also
advertises its network.
Cybernet takes an active interest in the content of Adult Check sites,
employing a staff of 12 to review the site both before it is admitted to the
Adult Check family, and periodically thereafter. The content of the site is
reviewed by Cybernet to prevent the inclusion of prohibited images. Cybernet
also provides comment on the site's layout. The images on each site, however,
are not provided by Cybernet. Instead, each site is run by a third party, who is
responsible for locating the images, arranging to have the site hosted, and
advertising the site.
Perfect 10, which holds the copyright in a number of images of nude women made
available to the public both on its web site and in a magazine, brought this
suit, charging that web sites in the Adult Check family contained over 10,000
images in which Perfect 10 held the copyright.
The court determined that Perfect 10 was likely to prevail on its claims
contributory and vicarious copyright infringement against Cybernet, as well on
its claims of unfair competition under Cal. Bus. and Professions Code Section
17200. The court held that Perfect 10 was likely to prevail on its contributory
infringement claim because Cybernet was likely to be held to have the requisite
notice of the infringing activities at issue, and to have materially contributed
to this infringement by its operation of the Age Verification Service, and
particular its collection of fees for, and advertising of the web sites in
question.
The court further held that Perfect 10 was likely to prevail on its vicarious
infringement claim, because Cybernet had the ability to control the web sites,
as evidenced by the review of its content it conducted, and received a direct
financial benefit from the presence on these web sites of the infringing images.
Lastly, the court held that Perfect 10 was likely to prevail on its unfair
competition claim, because Cybernet was likely to be held to have aided and
abetted a violation of various models' right to publicity, again by virtue of
its knowledge of infringement, and contributed thereto by virtue of its
operation of the AVS system.
The court further held that Cybernet was unlikely to be able to avoid this
liability under the safe harbor provisions of the Digital Millennium Copyright
Act, because the court was likely to hold both that the DMCA policy Cybernet
adopted failed to comply with the DMCA, and that Cybernet failed to reasonably
implement such a policy, or terminate repeat infringers. Cybernet was also
unlikely to be able to seek the protections of the DMCA because it received a
financial benefit directly attributable to infringing activity it had the right
and ability to control.
The court accordingly issued a preliminary injunction, which prohibited Cybernet
from utilizing or linking to the images in question. The injunction further
obligated Cybernet to stop linking to sites containing the images in question
where Cybernet had either notice thereof, or knew or should have known of the
presence of the images, under circumstances specified in the injunction. The
injunction also obligated Cybernet to undertake reviews both of sites seeking to
become members of the Adult Check network, and of designated existing sites, to
ascertain whether they were using any of the images at issue, and to bar such
new sites from entering the network without proper rights documentation. The
scope of this injunction is discussed in greater depth in the accompanying
"in depth" analysis of this decision.
Voyeur Dorm, L.C., Entertainment Network, Inc., Dan Marshlack and Sharon Gold
Marshlack v. City of Tampa, Florida
D.C. Docket No. 99-02180-CV-T-24F (11th Cir., September 21, 2001)
Plaintiffs operate the Voyeurdorm.com web site, at which subscribers, for a
price, can view the activities of five women in a house located in Tampa,
Florida, including those that occur in bedrooms, bathrooms and showers.
Reversing the decision of the District Court, the United States Court of Appeals
for the Eleventh Circuit held that plaintiffs' operation of this web site does
not constitute a violation of the Tampa City Code, which prohibits the operation
of an adult entertainment establishment in the residential neighborhood in which
the house at which plaintiffs' filming activities took place is located.
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