Ninth Circuit Reverses Ruling In Perfect 10 v. Google Case

Bingham last discussed the Perfect 10 v. Google case in an Alert issued in March 2006. We noted that the district court’s decision¹ denying Google’s fair use defense yielded an ironic result: namely, works that were previously available to the public suddenly became unavailable even though Perfect 10’s sale of some of those works was hypothetical. To Review the March 2006 Alert, please click here.

Unsurprisingly, Google appealed the district court decision on several grounds, including the fair use issue. The Ninth Circuit reversed and found that Google will likely be able to sustain its fair use defense because Perfect 10 relied on hypothetical, rather than actual, adverse effects on its market.² The case is still in its initial stages, and facts might be developed that could yield a different result under the Ninth Circuit’s decision. Moreover, the Ninth Circuit also determined that the district court applied the wrong test in its analysis of contributory infringement and