Adult magazine publisher Perfect 10 is one of the most litigious publishers in the online space.
The company has made a business out of suing Internet services for alleged copyright infringement and in recent years has targeted Google, Amazon, MasterCard and Visa, RapidShare and Depositfiles, and even hosting providers LeaseWeb and OVH.
While Perfect 10 has secured several private settlements, court victories in contested cases have not been forthcoming. The publisher had hoped of success in its current and prolonged legal battle with Usenet provider Giganews but things are not going well.
In a November 2014 ruling the U.S. District Court for the Central District of California found that Giganews was not liable for the infringing activities of its users. The provider now has further reason to celebrate thanks to a ruling from the same Court.
Rather than simply roll over under pressure from Perfect 10’s legal team, Giganews put up a vigorous and comprehensive defense to the publisher’s claims. During 2014 Giganews sought and obtained several discovery orders requiring the adult publisher to produce potentially huge amounts of data relating to its claim against the provider, including but not limited to:
– Information on all allegedly infringing URLs / Usenet Message IDs
– Information on all Perfect 10 advertising since Jan 2008
– All IP / email addresses used by Perfect 10 / affiliates
– All copyright registrations and ownership documents
– Details of every author / photographer of every work in the case
– All evidence of direct and indirect infringement
– Perfect 10 server logs and website metrics
– Documents detailing all previous Perfect 10 litigation plus settlements
In a 56-page ruling handed down last Thursday, Magistrate Judge Stephen J. Hillman details a laundry list of non-compliance by Perfect 10, from partial to complete failure to provide the requested documents to “misleading” representations and “intentional” non-compliance.
Perfect 10 didn’t even produce evidence related to the infringement at the heart of the case.
“Perfect 10 failed to produce any evidence supporting its claim of direct
infringement,” the Judge writes, noting that it also “failed to produce any evidence supporting its claim of indirect infringement.”
While the Court dedicates many pages of its ruling to the failures of Perfect 10 to comply with its orders, it comes as little surprise that the company did not disclose the private conclusions to its earlier litigation.
“Perfect 10 failed to produce its complaints from all its earlier lawsuits..[..]..and also failed to produce its settlement agreements from earlier lawsuits,” the ruling reads. Even complaints Perfect 10 relied upon for its damages opinion were omitted.
Perfect 10 witnesses were also singled out for criticism, alongside the company’s counsel who did not do enough to bring them into line.
“The fact that the Perfect 10 affiliated witnesses kept making the same mistakes over and over shows that Perfect 10’s counsel was not adequately supervising their efforts to ensure full compliance with the Court’s Orders,” the Judge explains.
“In the peculiar circumstances of Perfect 10’s conduct in this case, the Court can properly hold Perfect 10 and its attorneys responsible for the Perfect 10-affiliated witnesses’ conduct.”
In conclusion, Giganews won this one big and Perfect 10 are now going to have to pick up the bill.
“[Giganews] presented this Court with extensive evidence showing unjustified discovery noncompliance, numerous violations of this Court’s orders, and pervasive failures by Perfect 10, its attorneys, and the Perfect 10-affiliated witnesses. The court will proceed to determine the reasonable amount of monetary sanctions, and whether they should be assessed against Perfect 10 and/or its counsel,” Judge Hillman concludes.
In a statement sent to TorrentFreak, Ron Yokubaitis, co-Chief Executive Officer of Giganews, says his company welcomes the ruling.
“From the beginning, we rejected the veracity of Perfect 10’s allegations and believed strongly in our position. As a result, we forced Perfect 10 to litigate this case on the merits,” Yokubaitis says.
“Perfect 10’s response to our approach was to engage in a pattern of systematic abuse of the discovery process and outright disregard of the court’s orders,” added Yokubaitis. “We are pleased with the magistrate judge’s ruling and we look forward to the Court’s final determination on monetary sanctions to be assessed.”
The big question now is whether this legal mauling and promised monetary sanctions will lead Perfect 10 down a different path on potential future litigation. Giganews has certainly shown its teeth, so ‘softer’ targets could be on the horizon.