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Perfect 10, Inc. v., Inc., et al., USCA Ninth Circuit

On December 3, the Ninth Circuit amended its May, 2007, ruling in this copyright infringement case brought by Perfect 10, a company that markets and sells copyrighted images of nude models, against Google and for displaying thumbnail-size versions of the plaintiff’s photographs on a search results page and for linking to third-party web sites where full-sized unauthorized copies of the plaintiff’s photographs are available.

The amendment revises the Ninth Circuit’s prior holding on the burden of proof at the preliminary injunction stage in copyright cases when the defendant asserts an affirmative defense (in this case, the fair use defense). The amended ruling holds that once the plaintiff has met its burden of showing a likelihood of success on the merits of its infringement claim, the burden shifts to the defendant to show a likelihood of success on its affirmative defense. The court previously had held that in the copyright context the plaintiff bears the burden of showing a likelihood of success in overcoming the fair use defense.