determined that it need not reach Perfect 10’s argument that Google received a direct financial
benefit.^625
Based on its rulings, the Ninth Circuit reversed the district court’s determination that
Google’s thumbnail versions of Perfect 10’s images likely constituted a direct infringement. It
also reversed the district court’s conclusion that Perfect 10 was unlikely to succeed on the merits
of its secondary liability claims because the district court failed to consider whether Google and
Amazon.com knew of infringing activities yet failed to take reasonable and feasible steps to
refrain from providing access to infringing images. Accordingly, the Ninth Circuit remanded the
case to the district court for further proceedings on this point, as well as to consider whether
Google and Amazon.com would qualify for any of the safe harbors of the DMCA, an issue
which the district court did not consider because of its rulings. Because the district court would
need to reconsider the appropriate scope of injunctive relief after addressing the secondary
liability issues, the Ninth Circuit decided that it need not address the parties’ dispute over
whether the district court abused its discretion in determining that Perfect 10 satisfied the
irreparable harm element of a preliminary injunction.^626
On remand, Google asserted various safe harbors under the DMCA. Analysis of the
rulings with respect to whether Google was entitled to any of the safe harbors may be found in
Section III.C.6(b)(1)(ii).c.
- Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey
In Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey,^627 the court ruled
that display of copyrighted images on computer monitors within a law office constituted a public
display, but was permitted under the fair use doctrine. Healthcare Advocates had filed a lawsuit
alleging that a competitor infringed trademarks and copyrights and misappropriated trade secrets
belonging to Healthcare Advocates. The defendants in that case were represented by the
boutique IP law firm of Harding, Earley, Follmer & Frailey. To aid in preparing a defense, on
two occasions employees of the Harding firm accessed screenshots of old versions of Healthcare
Advocates’ web sites that had been archived by the Internet Archive’s web site
(www.archive.org). The old versions of the web site were accessed through the “Wayback
Machine,” an information retrieval system offered to the public by the Internet Archive that
allowed users to request archived screenshots contained in its archival database. Viewing the
content that Healthcare Advocates had included on its public web site in the past was very useful
to the Harding firm in assessing the merits of the trademark and trade secret allegations brought
against the firm’s clients. The Harding firm printed copies of the archived screenshots of interest
and used the images in the litigation against their clients. Healthcare Advocates then sued the
Harding firm, alleging that viewing the screenshots of the old versions of their web site on
computers within the firm constituted an infringing public display, and that printing of copies of
(^625) Id. at 1175 n.15.
(^626) Id. at 1176-77.
(^627) 2007 U.S. Dist. LEXIS 52544 (E.D. Pa. July 20, 2007).