Law professor witness challenges US judge’s copyright precedent

LOS ANGELES -- Seemingly settled questions about whether internet platforms should be responsible for copyright infringement by their users were dredged up Monday in a federal court in front of the very district judge who wrote the decision establishing a platform is not responsible for its users' infringements.

"Look at YouTube. Is there any one video that causes users to join YouTube?" Douglas Litchman, a law professor at UCLA who specializes in copyright, asked a jury while on the witness stand Monday. "Probably not. But would we still say that YouTube gets a direct financial benefit to infringing videos? I did."

After the 9th U.S. Circuit Court of Appeals upheld U.S. District Judge Andre Birotte Jr.'s partial summary judgment in 2017 against adult magazine Perfect 10 in its copyright infringement lawsuit against usenet access-provider Giganews, Perfect 10 was ordered to pay $5.6 million in attorney fees.

When Perfect 10 lost its challenge to the judgment at the 9th Circuit and the Supreme Court refused to review the case, an important precedent was set. If defendants simply provide the means or services, which allow others to make and share copies, they can only be found indirectly liable for copyright infringement under indirect liability doctrines. Perfect 10 Inc., v. Giganews Inc., 2017 DJDAR 640.

Giganews, represented by Andrew P. Bridges and Todd Richard Gregorian of Fenwick & West LLP, is a provider of an old technology that allows paying subscribers access to shared messages containing all types of files that can in turn be uploaded and shared.

They claim that after losing its infringement suit, Perfect 10's sole board member and CEO, Norman Zada, began transferring Perfect 10's cash and assets to himself in an effort to defraud Giganews out of its ability to collect the judgment. Giganews Inc., v. Perfect 10 Inc., 17-CV05075 (C.D. filed July 10, 2017).

Now, in an effort to prove Zada fully expected to win his appeal prior to being ordered to pay attorney fees, Litchman said a knowledgeable person could have disagreed with Birotte's original finding of who bears the responsibility of infringement -- the user or the platform.

"To prove a direct financial benefit, you need to show the court very specific evidence that a specific user was moved to join the Giganews ecosystem because of specific images," Litchman said. "I'm here to fight with the court on that. All I want to say is that a knowledgeable person might have read that and said, 'Wow, that's way too narrow. That's not the right way to define this phrase.'"

While the current suit was brought by Giganews in an effort to collect these fees, the larger question of who should be held responsible seems to be repeatedly raised.

The European Union voted just last week to take the exact opposite stance when it comes to infringement, making platforms responsible for users' infringement by 2021.