Perfect 10 sued Google in November of 2004. It says that Google is displaying hundreds of thousands of adult images, "from the most tame to the most exceedingly explicit, to draw massive traffic to its website, which it is converting into hundreds of millions of dollars of advertising revenue."
Perfect 10 claims that under the guise of being a search engine, Google is displaying, free of charge, thousands of copies of the best images from Perfect 10, Playboy, nude scenes from major movies, nude images of supermodels, as well as extremely explicit images of all kinds.
The publisher contends that it has sent 35 notices of infringement to Google covering over 6,500 infringing URLs, but that Google continues to display over 3,000 Perfect 10 copyrighted images without authorization.
According to Dr. Norm Zada, the founder of Perfect 10 Magazine and a former Stanford, UCLA, and Columbia University professor and IBM Computer Science Research Staff Member, who began publishing Perfect 10 Magazine in 1997, most of the traffic to search engines is sex-related.
"Overture's Key Selector Tool indicates that most searches on the internet are sex-related," says Zada. "Google's extraordinary gain in market cap from nothing a few years ago to close to eighty billion dollars, is more due to their massive misappropriation of intellectual property than anything else," says Zada.
According to Perfect 10, Google will likely argue that because it provides a "search function," it should be excused from liability for copyright infringement. From Perfect 10's standpoint, Google isn't directing people where to find Perfect 10 images – that would be Perfect 10 Magazine and perfect10.com – rather, it is displaying Perfect 10 images and allowing users to download Perfect 10 images itself. To the extent that Google does direct users searching for Perfect 10 pictures anywhere, "it is virtually always to a website which misappropriated those images, not to perfect10.com."
Zada continued: "Google is currently displaying over 3,000 Perfect 10 copyrighted images and linking them to websites containing numerous other Perfect 10 copyrighted images and in many cases ads for which Google earns revenue."
"Google is no longer a legitimate search engine," he said. "It is a commercial advertising operation determined to increase ad revenue regardless of what rights it tramples on in the process."
"In some cases, as many as 96% of Google search results on Perfect 10 model names go not to Perfect10.com, but to infringing Google AdSense partners of which Google has received notice," says Zada. "That's not legitimate search."
Any website publisher can sign up for Google AdSense. It's an easy way for publishers to display Google ads – those being paid for by its AdWords customers – on their content pages. AdWords customers pay Google and Google pays a commission to AdSense publishers. So Google can maximise its revenues by maximising the traffic that it sends to AdSense affiliates. Perfect 10 does not suggest that Google is weighting its search results in favour of AdSense-supported sites; but it does argue that Google profits directly from the popularity of porn, and its particular concern is that it profits from Perfect 10's porn that has been stolen by others.
Zada believes that the outcome of Perfect 10's motion for preliminary injunction should have a major impact not only on Perfect 10, but also on traditional media outlets which are losing the ad revenue war to search engines, in part because of all the nude and semi-nude images search engines offer for free.
Right now, he says, consumers who want to view a nude scene involving Halle Berry, Nicole Kidman, or other Hollywood beauties, can view that scene for free by visiting a search engine without purchasing the DVD. "If all an infringer needs to avoid liability is to provide some sort of a 'search function,' that will be the end of intellectual property in this country," says Zada.
