domain_names_and_trademarks_legal_issues-deborah_wilcox.ppt

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zachbrowne

Technology Business

Million Dollar Domain Case Presented by: Deborah A. Wilcox Baker & Hostetler LLP

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FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PERFECT 10, INC., Plaintiff-counter-defendant- No. 10-56316 Appellant, D.C. No. v. 2:04-cv-09484- AHM-SHGOOGLE, INC., a corporation, Defendant-counter-claimant- OPINION Appellee.  Appeal from the United States District Court for the Central District of California A. Howard Matz, District Judge, Presiding Argued and Submitted April 11, 2011—San Francisco, California Filed August 3, 2011 Before: Alex Kozinski, Chief Judge, Michael Daly Hawkins and Sandra S. Ikuta, Circuit Judges. Opinion by Judge Ikuta 10119 COUNSEL David Schultz (argued) and Jeffrey Neil Mausner, Law Offices of Jeffrey N. Mausner, Woodland Hills, California, for appellant Perfect 10, Inc. Andrew H. Schapiro (argued), Mayer Brown, LLP, New York, New York; Michael T. Zeller, Quinn Emanuel Urquhart & Sullivan, LLP, Los Angeles, California; Bradley R. Love, Quinn Emanuel Urquhart & Sullivan, LLP, San Francisco, California; and Rachel Herrick Kassabian, Margret M. Caruso, and Andrea Pallios Roberts, Quinn Emanuel Urquhart & Sullivan, LLP, New York, New York, for appellee Google, Inc. 10121PERFECT 10 v. GOOGLE Nancy E. Wolff, Cowan, DeBaets, Abrahams & Sheppard, New York, New York, for amici curiae Picture Archive Council of America, Inc., et al. Joseph C. Gratz, Durie Tangri LLP, San Francisco, Califor- nia, for amici curiae Chilling Effects Clearinghouse Leaders. OPINION IKUTA, Circuit Judge: In this appeal, we once again consider a request by Perfect 10, Inc. for a preliminary injunction against Google, Inc. See Perfect 10, Inc. v. Amazon.com, Inc. (Perfect 10 II), 508 F.3d 1146 (9th Cir. 2007). Because Perfect 10 has not demonstrated that it would likely suffer irreparable harm in the absence of a preliminary injunction, we affirm the district court’s denial of that relief. I This appeal is the latest installment in a legal saga of several years’ duration. That history is recounted elsewhere, see Perfect 10 II, 508 F.3d 1146, so we focus here on only those facts material to the questions before us now. Perfect 10 creates (and copyrights) photographic images of nude models for commercial distribution. For several years, it featured them in a now-defunct magazine, “PERFECT 10”; more recently, it began offering them for viewing on a password- protected, paid-subscription website, “perfect10.com.” Perfect 10’s subscription website generates revenue from subscribers who pay a monthly fee to view the copyrighted images in a “members’ area,” which members access through a unique username/password combination. Perfect 10 v. Google, Inc. (Perfect 10 I), 416 F. Supp. 2d 828, 832 & n.3 (C.D. Cal. 2006). Perfect 10 has generated virtually all of its revenue from these copyrighted images. Id. at 832. 10122 PERFECT 10 v. GOOGLE Google operates numerous web-based services. Chief among them is its search engine, which uses an automated software program, known as a web crawler, to obtain co.

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