Section 512(b), and granted Google's motion for partial summary judgment of entitlement to safe
harbor under Section 512(c) for its Blogger feature.^2381
The district court also denied Perfect 10’s motion for a preliminary injunction on the
basis that it had not shown it was likely to suffer irreparable harm in the absence of such relief,
and that it had failed to satisfy any of the other requirements for a preliminary injunction.^2382 On
appeal, Perfect 10 claimed the district court erred in denying its motion for a preliminary
injunction and sought review of the district court’s summary judgment order under the safe
harbors, arguing that the order was inextricably intertwined with its request for a preliminary
injunction.^2383
The Ninth Circuit affirmed the district court’s denial of a preliminary injunction. First,
the court ruled that, following the Supreme Court’s decision in eBay Inc. v. MercExchange,
LLC,^2384 “the propriety of injunctive relief in cases arising under the Copyright Act must be
evaluated on a case-by-case basis in accord with traditional equitable principles and without the
aid of presumptions or a ‘thumb on the scale’ in favor of issuing such relief.”^2385 Although eBay
dealt with a permanent injunction, the Ninth Circuit concluded that the rule enunciated in that
case is equally applicable to preliminary injunctive relief.^2386 The court then affirmed the district
court’s denial of a preliminary injunction because Perfect 10 had not shown a sufficient causal
connection between its business harm and Google’s operation of its search engine. Perfect 10
argued that its revenues had declined from nearly $2 million per year to less than $150,000 per
year during the period in which thumbnails of Perfect 10’s images had become more widely
available through Google’s search engine, and that Perfect 10 was very close to bankruptcy. The
Ninth Circuit held this was insufficient evidence to establish that failure to enjoin Google’s
operations would cause Perfect 10 irreparable harm. First, Perfect 10 had not alleged that it was
ever in sound financial shape, and the company’s president and founder acknowledged that
search engines other than Google contributed to making Perfect 10 images freely available. In
addition, Perfect 10 had failed to submit a statement from even a single former subscriber who
ceased paying for Perfect 10’s service because of the content freely available via Google.
Accordingly, the Ninth Circuit affirmed the denial of a preliminary injunction.^2387
(^2381) Id. at *45.
(^2382) Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 978 (9th Cir. 2011), cert. denied, 132 S. Ct. 1713 (2012).
(^2383) Id.
(^2384) 547 U.S. 388 (2006).
(^2385) Perfect 10 v. Google, 653 F.3d at 980. The Ninth Circuit was persuaded by the Second Circuit’s reasoning
when it reached the same conclusion in the case of Salinger v. Colting, 607 F.3d 68, 75, 79 (2d Cir. 2010).
(^2386) Perfect 10 v. Google, 653 F.3d at 981.
(^2387) Id. at 981-82.