Tuesday, July 03, 2007

Pirate Booty

New decision out today from the 9th Circuit, Perfect10 v. Visa. The majority (Judge Kozinski dissented) affirmed a motion to dismiss on claims of secondary copyright infringement (inter alia). Perfect 10 is a website that provides adult photographs, and they have a long history in the courts of attempting to expand contributory liability. In this case, they sued Visa for copyright infringement, claiming that Visa was liable because the company processes payments for copyrighted images stolen from Perfect 10's site. The majority basically found that processing the payments was too attenuated a causal chain to support secondary liability.

Kozinski vigorously dissented, arguing that because payment was essential to the transaction, Visa was materially contributing to the infringement (here the distribution of copyright-infringing works). Or, as he eloquently put it, "If cards don’t process payment, pirates don’t deliver booty."

UPDATE: Experts where I work suggested that Kozinski's dissent was due in large part to the fact that this was a motion to dismiss. There are at least some set of facts that might allow this case to go forward.

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