Tumblr sued by Perfect 10 for Copyright Infringement

Perfect 10 is well known for filing copyright infringement lawsuits against online services that display Perfect 10′s adult photos without permission. Tumblr just got sued by Perfect 10. Many people expected Tumblr to get sued long before now.

Perfect 10 brings the case in the Southern District of New York (filed May 4, 2012) and alleges that Tumblr is a direct and contributory infringer. In other words, Tumblr employees themselves posted infringing photos as did the account holders of Tumblr. Perfect 10 claims Tumblr did not follow the DMCA when it received effective DMCA Notices from Perfect 10 and therefore, Tumblr loses its DMCA immunity.

This case will be decided in the same Circuit where Viacom sued YouTube and the court only weeks ago affirmatively held that the “wilfull blindness” doctrine can be applied to ISPs. A person/entity is “willfully blind” or engages in “conscious avoidance” amounting to knowledge where the person “was aware of a high probability of the fact in dispute and consciously avoided confirming that fact.” Was Tumblr aware (did they consciously avoid) of a high probability that it stored and displayed images that infringed on Perfect 10′s photographs?

It may also shed light on whether or not services like Tumblr must institute image filtering software to identify copyright protected works to maintain immunity under DMCA.

If this case is not quickly settled, and if the facts as alleged are true, new DMCA law may be created that could shave away a part of the DMCA safe harbor for online service providers.