Nude pictures website Perfect 10 has failed in its bid to have the US Supreme Court back its case against credit card payment processors. The firm had claimed the processors are responsible for piracy of Perfect 10 images.
Perfect 10 publishes pictures of naked women, some of which are pirated by other companies which charge for access to their sites. Perfect 10 said that companies that process payments to these copyright-infringing sites are themselves benefiting from piracy.
It lost its case earlier this year and it took an appeal to the Supreme Court. That Court has just published the list of which cases it will and will not hear, and the Perfect 10 case has been denied a hearing.
The credit card companies involved, CCBill and CWIE, argued that the 'safe harbor' provisions of the Digital Millennium Copyright Act (DMCA) and the Communications Decency Act protected them.
The 'safe harbor' provisions protect companies such as credit card firms or internet service providers (ISPs) from liability for the actions of their customers. The earlier court ruling found that the safe harbor provisions of both laws applied in the Perfect 10 case.
The company had previously tried to sue Visa, amongst others, on similar grounds but it lost that case in 2004. The judge in that case said that in order to qualify for contributory infringement, credit card firms would have to have provided assistance which bore "some direct relationship to the infringing acts".
Perfect 10 has taken a number of controversial previous lawsuits in attempts to protect its photographs. It lost a hotly-contested case against Google earlier this year in which it argued that Google's image search function's publishing of thumbnail images of Perfect 10 pictures was a violation of copyright law.
In a long and complicated adjudication, the Court of Appeals for the Ninth Circuit said that the creation and display of thumbnail images was not copyright infringement, but it did not decide on some other crucial issues, sending them back to a lower court for further analysis.
The court said that Google cannot be said to be distributing the full-size images because it does not hold a copy of them. Rather it indexes them, said Judge Sandra Ikuta.
A lower court had placed an injunction on Google's publishing of the thumbnails, but that was lifted by Ikuta, who said the publishing qualified as fair use under the DMCA.